Exhibit 4.11
RAPTOR PHARMACEUTICAL
CORP.
SUBORDINATED DEBT
SECURITIES
INDENTURE
Dated as of
Trustee
TABLE OF CONTENTS
Page
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ARTICLE 1
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DEFINITIONS
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1
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Section 1.01
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Definitions of Terms
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1
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ARTICLE 2
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ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF
SECURITIES
5
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Section 2.01
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Designation and Terms of Securities
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5
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Section 2.02
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Form of Securities and Trustee’s
Certificate
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7
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Section 2.03
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Denominations: Provisions for Payment
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7
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Section 2.04
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Execution and Authentications
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9
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Section 2.05
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Registration of Transfer and Exchange
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10
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Section 2.06
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Temporary Securities
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11
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Section 2.07
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Mutilated, Destroyed, Lost or Stolen
Securities
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11
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Section 2.08
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Cancellation
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12
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Section 2.09
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Benefits of Indenture
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12
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Section 2.10
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Authenticating Agent
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12
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Section 2.11
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Global Securities
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13
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ARTICLE 3
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REDEMPTION OF SECURITIES AND SINKING FUND
PROVISIONS
14
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Section 3.01
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Redemption
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14
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Section 3.02
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Notice of Redemption
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14
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Section 3.03
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Payment Upon Redemption
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15
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Section 3.04
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Sinking Fund
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16
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Section 3.05
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Satisfaction of Sinking Fund Payments with
Securities
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16
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Section 3.06
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Redemption of Securities for Sinking
Fund
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16
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ARTICLE 4
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COVENANTS
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17
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Section 4.01
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Payment of Principal, Premium and
Interest
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17
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Section 4.02
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Maintenance of Office or Agency
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17
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Section 4.03
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Paying Agents
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18
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Section 4.04
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Appointment to Fill Vacancy in Office of
Trustee
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18
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Section 4.05
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Compliance with Consolidation
Provisions
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19
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TABLE OF CONTENTS
(continued)
Page
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ARTICLE 5
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SECURITYHOLDERS’ LISTS AND REPORTS BY THE
COMPANY AND THE
TRUSTEE
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Section 5.01
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Company to Furnish Trustee Names and Addresses
of
Securityholders
19
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Section 5.02
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Preservation Of Information; Communications With
Securityholders
19
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Section 5.03
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Reports by the Company
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19
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Section 5.04
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Reports by the Trustee
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20
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ARTICLE 6
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REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF
DEFAULT
20
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Section 6.01
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Events of Default
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20
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Section 6.02
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Collection of Indebtedness and Suits for
Enforcement by
Trustee
22
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Section 6.03
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Application of Moneys Collected
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23
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Section 6.04
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Limitation on Suits
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24
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Section 6.05
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Rights and Remedies Cumulative; Delay or
Omission Not
Waiver
24
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Section 6.06
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Control by Securityholders
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25
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Section 6.07
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Undertaking to Pay Costs
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25
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ARTICLE 7
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CONCERNING THE TRUSTEE
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26
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Section 7.01
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Certain Duties and Responsibilities of
Trustee
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26
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Section 7.02
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Certain Rights of Trustee
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27
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Section 7.03
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Trustee Not Responsible for Recitals or Issuance
or Securities
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28
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Section 7.04
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May Hold Securities
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28
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Section 7.05
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Moneys Held in Trust
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29
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Section 7.06
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Compensation and Reimbursement
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29
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Section 7.07
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Reliance on Officers’
Certificate
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29
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Section 7.08
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Disqualification; Conflicting
Interests
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29
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Section 7.09
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Corporate Trustee Required;
Eligibility
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30
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Section 7.10
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Resignation and Removal; Appointment of
Successor
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30
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Section 7.11
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Acceptance of Appointment By
Successor
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31
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Section 7.12
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Merger, Conversion, Consolidation or Succession
to Business
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32
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TABLE OF CONTENTS
(continued)
Page
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Section 7.13
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Preferential Collection of Claims Against the
Company
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33
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Section 7.14
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Notice of Default
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33
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ARTICLE 8
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CONCERNING THE SECURITYHOLDERS
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33
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Section 8.01
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Evidence of Action by Securityholders
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33
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Section 8.02
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Proof of Execution by Securityholders
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34
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Section 8.03
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Who May be Deemed Owners
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34
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Section 8.04
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Certain Securities Owned by Company
Disregarded
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34
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Section 8.05
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Actions Binding on Future
Securityholders
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35
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ARTICLE 9
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SUPPLEMENTAL INDENTURES
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35
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Section 9.01
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Supplemental Indentures Without the Consent of
Securityholders
35
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Section 9.02
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Supplemental Indentures With Consent of
Securityholders
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36
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Section 9.03
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Effect of Supplemental Indentures
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37
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Section 9.04
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Securities Affected by Supplemental
Indentures
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37
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Section 9.05
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Execution of Supplemental Indentures
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37
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ARTICLE 10
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SUCCESSOR ENTITY
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38
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Section 10.01
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Company May Consolidate, Etc
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38
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Section 10.02
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Successor Entity Substituted
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38
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Section 10.03
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Evidence of Consolidation, Etc. to
Trustee
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39
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ARTICLE 11
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SATISFACTION AND DISCHARGE
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39
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Section 11.01
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Satisfaction and Discharge of
Indenture
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39
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Section 11.02
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Discharge of Obligations
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40
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Section 11.03
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Deposited Moneys to be Held in Trust
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40
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Section 11.04
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Payment of Moneys Held by Paying
Agents
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40
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Section 11.05
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Repayment to Company
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40
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ARTICLE 12
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IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND
DIRECTORS
41
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Section 12.01
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No Recourse
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41
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ARTICLE 13
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MISCELLANEOUS PROVISIONS
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41
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Section 13.01
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Effect on Successors and Assigns
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41
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Section 13.02
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Actions by Successor
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41
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TABLE OF CONTENTS
(continued)
Page
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Section 13.03
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Surrender of Company Powers
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41
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Section 13.04
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Notices
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42
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Section 13.05
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Governing Law
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42
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Section 13.06
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Treatment of Securities as Debt
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42
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Section 13.07
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Certificates and Opinions as to Conditions
Precedent
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42
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Section 13.08
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Payments on Business Days
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43
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Section 13.09
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Conflict with Trust Indenture Act
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43
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Section 13.10
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Counterparts
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43
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Section 13.11
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Separability
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43
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Section 13.12
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Compliance Certificates
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43
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ARTICLE 14
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SUBORDINATION OF SECURITIES
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44
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Section 14.01
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Subordination Terms
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44
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INDENTURE
INDENTURE , dated as of [ • ], 200 , between
RAPTOR PHARMACEUTICAL CORP. , a Delaware corporation (the
“Company”), and [ TRUSTEE ], as trustee (the
“Trustee”):
WHEREAS , for its lawful corporate purposes, the Company
has duly authorized the execution and delivery of this Indenture to
provide for the issuance of subordinated debt securities
(hereinafter referred to as the “Securities”), in an
unlimited aggregate principal amount to be issued from time to time
in one or more series as in this Indenture provided, as registered
Securities without coupons, to be authenticated by the certificate
of the Trustee;
WHEREAS , to provide the terms and conditions upon which
the Securities are to be authenticated, issued and delivered, the
Company has duly authorized the execution of this Indenture;
and
WHEREAS , all things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE
, in consideration of the premises
and the purchase of the Securities by the holders thereof, it is
mutually covenanted and agreed as follows for the equal and ratable
benefit of the holders of Securities:
ARTICLE 1
DEFINITIONS
Section 1.01
Definitions of Terms . The terms defined in this Section
(except as in this Indenture or any indenture supplemental hereto
otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in
this Section and shall include the plural as well as the singular.
All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939, as amended, or that are by reference
in such Act defined in the Securities Act of 1933, as amended
(except as herein or any indenture supplemental hereto otherwise
expressly provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in said Trust Indenture
Act and in said Securities Act as in force at the date of the
execution of this instrument.
“ Authenticating
Agent ” means an authenticating agent with respect to
all or any of the series of Securities appointed by the Trustee
pursuant to Section 2.10.
“ Bankruptcy Law
” means Title 11, U.S. Code, or any similar federal or state
law for the relief of debtors.
“ Board of
Directors ” means the Board of Directors of the
Company or any duly authorized committee of such Board.
“ Board
Resolution ” means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification.
“ Business Day
” means, with respect to any series of Securities, any day
other than a day on which federal or state banking institutions in
the Borough of Manhattan, the City of New York, or in the city of
the Corporate Trust Office of the Trustee, are authorized or
obligated by law, executive order or regulation to
close.
“ Certificate
” means a certificate signed by any Officer. The Certificate
need not comply with the provisions of Section 13.07.
“ Company
” means Raptor Pharmaceutical Corp., a corporation duly
organized and existing under the laws of the State of Delaware,
and, subject to the provisions of Article Ten, shall also include
its successors and assigns.
“ Corporate Trust
Office ” means the office of the Trustee at which, at
any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is
located at o .
“ Custodian
” means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
“ Default
” means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
“ Depositary
” means, with respect to Securities of any series for which
the Company shall determine that such Securities will be issued as
a Global Security, The Depository Trust
Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency
under the Securities and Exchange Act of 1934, as amended (the
“Exchange Act”), or other applicable statute or
regulation, which, in each case, shall be designated by the Company
pursuant to either Section 2.01 or 2.11.
“ Event of
Default ” means, with respect to Securities of a
particular series, any event specified in Section 6.01, continued
for the period of time, if any, therein designated.
“ Global
Security ” means, with respect to any series of
Securities, a Security executed by the Company and delivered by the
Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with the Indenture, which shall be
registered in the name of the Depositary or its nominee.
“ Governmental
Obligations ” means securities that are (a) direct
obligations of the United States of America for the payment of
which its full faith and credit is pledged or (b) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case,
are not callable or redeemable at the option of the issuer thereof
at any time prior to the stated maturity of the Securities, and
shall also include a depositary receipt issued by a bank or trust
company as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account
of the holder of such depositary receipt; provided, however, that
(except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in
respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced
by such depositary receipt.
“ herein
”, “ hereof ” and “
hereunder ”, and other words of similar import,
refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
“ Indenture
” means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into in accordance with the
terms hereof.
“ Interest Payment
Date ”, when used with respect to any installment of
interest on a Security of a particular series, means the date
specified in such Security or in a Board Resolution or in an
indenture supplemental hereto with respect to such series as the
fixed date on which an installment of interest with respect to
Securities of that series is due and payable.
“ Officer
” means, with respect to the Company, the chairman of the
Board of Directors, a chief executive officer, a president, a chief
financial officer, a chief operating officer, any executive vice
president, any senior vice president, any vice president, the
treasurer or any assistant treasurer, the controller or any
assistant controller or the secretary or any assistant
secretary.
“ Officers’
Certificate ” means a certificate signed by any two
Officers. Each such certificate shall include the statements
provided for in Section 13.07, if and to the extent required by the
provisions thereof.
“ Opinion of
Counsel ” means an opinion in writing subject to
customary exceptions of legal counsel, who may be an employee of or
counsel for the Company, that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 13.07, if and to the extent
required by the provisions thereof.
“ Outstanding
”, when used with reference to Securities of any series,
means, subject to the provisions of Section 8.04, as of any
particular time, all Securities of that series theretofore
authenticated and delivered by the Trustee under this Indenture,
except (a) Securities theretofore canceled by the Trustee or any
paying agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Securities
or portions thereof for the payment or redemption of which moneys
or Governmental Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article Three
provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) Securities in lieu of or in
substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section
2.07.
“ Person ”
means any individual, corporation, partnership, joint venture,
joint-stock company, limited liability company, association, trust,
unincorporated organization, any other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
“ Predecessor
Security ” of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 2.07 in lieu of a lost, destroyed or stolen Security shall
be deemed to evidence the same debt as the lost, destroyed or
stolen Security.
“ Responsible
Officer ” when used with respect to the Trustee means
the chairman of its board of directors, the chief executive
officer, the president, any vice president, the secretary, the
treasurer, any trust officer, any corporate trust officer or any
other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the Persons who
at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge
of and familiarity with the particular subject.
“ Securities
” means the debt Securities authenticated and delivered under
this Indenture.
“ Securityholder
”, “ holder of Securities ”,
“ registered holder ”, or other similar
term, means the Person or Persons in whose name or names a
particular Security shall be registered on the books of the Company
kept for that purpose in accordance with the terms of this
Indenture.
“ Security
Register ” and “ Security
Registrar ” shall have the meanings as set forth in
Section 2.05.
“ Subsidiary
” means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the
time be owned, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, (ii) any general partnership, joint venture or
similar entity, at least a majority of whose outstanding
partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a
general partner.
“ Trustee
” means o , and, subject to the provisions of Article
Seven, shall also include its successors and assigns, and, if at
any time there is more than one Person acting in such capacity
hereunder, “Trustee” shall mean each such Person. The
term “Trustee” as used with respect to a particular
series of the Securities shall mean the trustee with respect to
that series.
“ Trust Indenture
Act ” means the Trust Indenture Act of 1939, as
amended.
“ Voting Stock
”, as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity
interest (however designated) in such Person having ordinary voting
power for the election of a majority of the directors (or the
equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by
reason of the occurrence of a contingency.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS,
EXECUTION, REGISTRATION AND EXCHANGE
OF SECURITIES
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Section 2.01
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Designation and Terms of Securities
.
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(a) The
aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may
be issued in one or more series up to the aggregate principal
amount of Securities of that series from time to time authorized by
or pursuant to a Board Resolution or pursuant to one or more
indentures supplemental hereto. Prior to the initial issuance of
Securities of any series, there shall be established in or pursuant
to a Board Resolution, and set forth in an Officers’
Certificate, or established in one or more indentures supplemental
hereto:
(1) the
title of the Securities of the series (which shall distinguish the
Securities of that series from all other Securities);
(2) any
limit upon the aggregate principal amount of the Securities of that
series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of that series);
(3) the
date or dates on which the principal of the Securities of the
series is payable, any original issue discount that may apply to
the Securities of that series upon their issuance, the principal
amount due at maturity, and the place(s) of payment;
(4) the
rate or rates at which the Securities of the series shall bear
interest or the manner of calculation of such rate or rates, if
any;
(5) the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates, the place(s) of
payment, and the record date for the determination of holders to
whom interest is payable on any such Interest Payment Dates or the
manner of determination of such record dates;
(6) the
right, if any, to extend the interest payment periods and the
duration of such extension;
(7) the
period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the
Company;
(8) the
obligation, if any, of the Company to redeem or purchase Securities
of the series pursuant to any sinking fund, mandatory redemption,
or analogous provisions (including payments made in cash in
satisfaction of future sinking fund obligations) or at the option
of a holder thereof and the period or periods within which, the
price or prices at which, and the terms and conditions upon which,
Securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(9) the
form of the Securities of the series including the form of the
Certificate of Authentication for such series;
(10) if
other than denominations of one thousand U.S. dollars ($1,000) or
any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(11) any
and all other terms (including terms, to the extent applicable,
relating to any auction or remarketing of the Securities of that
series and any security for the obligations of the Company with
respect to such Securities) with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture,
as amended by any supplemental indenture) including any terms which
may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of
Securities of that series;
(12) whether
the Securities are issuable as a Global Security and, in such case,
the terms and the identity of the Depositary for such
series;
(13) whether
the Securities will be convertible into or exchangeable for shares
of common stock or other securities of the Company or any other
Person and, if so, the terms and conditions upon which such
Securities will be so convertible or exchangeable, including the
conversion or exchange price, as applicable, or how it will be
calculated and may be adjusted,
any mandatory or optional (at the
Company’s option or the holders’ option) conversion or
exchange features, and the applicable conversion or exchange
period;
(14) if
other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant
to Section 6.01;
(15) any
additional or different Events of Default or restrictive covenants
(which may include, among other restrictions, restrictions on the
Company’s ability or the ability of the Company’s
Subsidiaries to: incur additional indebtedness; issue additional
securities; create liens; pay dividends or make distributions in
respect of their capital stock; redeem capital stock; place
restrictions on such Subsidiaries placing restrictions on their
ability to pay dividends, make distributions or transfer assets;
make investments or other restricted payments; sell or otherwise
dispose of assets; enter into sale-leaseback transactions; engage
in transactions with stockholders and affiliates; issue or sell
stock of their Subsidiaries; or effect a consolidation or merger)
or financial covenants (which may include, among other financial
covenants, financial covenants that require the Company and its
Subsidiaries to maintain specified interest coverage, fixed charge,
cash flow-based or asset-based ratios) provided for with respect to
the Securities of the series;
(16) if
other than dollars, the coin or currency in which the Securities of
the series are denominated (including, but not limited to, foreign
currency);
(17) the
terms and conditions, if any, upon which the Company shall pay
amounts in addition to the stated interest, premium, if any and
principal amounts of the Securities of the series to any
Securityholder that is not a “United States person” for
federal tax purposes;
(18) any
restrictions on transfer, sale or assignment of the Securities of
the series; and
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(19)
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the subordination terms of the Securities of the
series.
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All Securities of any one series
shall be substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to any such
Board Resolution or in any indentures supplemental
hereto.
If any of the terms of the series
are established by action taken pursuant to a Board Resolution of
the Company, a copy of an appropriate record of such action shall
be certified by the secretary or an assistant secretary of the
Company and delivered to the Trustee at or prior to the delivery of
the Officers’ Certificate of the Company setting forth the
terms of the series.
Securities of any particular series
may be issued at various times, with different dates on which the
principal or any installment of principal is payable, with
different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which
such interest may be payable and with different redemption
dates.
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Section 2.02
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Form of Securities and Trustee’s
Certificate .
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The Securities of any series and the
Trustee’s certificate of authentication to be borne by such
Securities shall be substantially of the tenor and purport as set
forth in one or more indentures supplemental hereto or as provided
in a Board Resolution, and set forth in an Officers’
Certificate, and they may have such letters, numbers or other marks
of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which Securities of that
series may be listed, or to conform to usage.
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Section 2.03
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Denominations: Provisions for Payment
.
|
The Securities shall be issuable as
registered Securities and in the denominations of one thousand U.S.
dollars ($1,000) or any integral multiple thereof, subject to
Section 2.01(a)(10). The Securities of a particular series shall
bear interest payable on the dates and at the rate specified with
respect to that series. Subject to Section 2.01(a)(16), the
principal of and the interest on the Securities of any series, as
well as any premium thereon in case of redemption thereof prior to
maturity, shall be payable in the coin or currency of the United
States of America that at the time is legal tender for public and
private debt, at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, the City and State of New
York. Each Security shall be dated the date of its authentication.
Interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The interest installment on any
Security that is payable, and is punctually paid or duly provided
for, on any Interest Payment Date for Securities of that series
shall be paid to the Person in whose name said Security (or one or
more Predecessor Securities) is registered at the close of business
on the regular record date for such interest installment. In the
event that any Security of a particular series or portion thereof
is called for redemption and the redemption date is subsequent to a
regular record date with respect to any Interest Payment Date and
prior to such Interest Payment Date, interest on such Security will
be paid upon presentation and surrender of such Security as
provided in Section 3.03.
Any interest on any Security that is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date for Securities of the same series (herein
called “Defaulted Interest”) shall forthwith cease to
be payable to the registered holder on the relevant regular record
date by virtue of having been such holder; and such Defaulted
Interest shall be paid by the Company, at its election, as provided
in clause (1) or clause (2) below:
(a) The
Company may make payment of any Defaulted Interest on Securities to
the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on
a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the
proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such
Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than 15 nor less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be
mailed, first class postage prepaid, to each Securityholder at his
or her address as it appears in the Security Register (as
hereinafter defined), not less than 10 days prior to such special
record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Securities (or their respective Predecessor
Securities) are registered on such special record date.
(b) The
Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities
may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a
Board Resolution or one or more indentures supplemental hereto
establishing the terms of any series of Securities pursuant to
Section 2.01 hereof, the term “regular record date” as
used in this Section with respect to a series of Securities and any
Interest Payment Date for such series shall mean either the
fifteenth day of the month immediately preceding the month in which
an Interest Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date is
the first day of a month, or the first day of the month in which an
Interest Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date is
the fifteenth day of a month, whether or not such date is a
Business Day.
Subject to the foregoing provisions
of this Section, each Security of a series delivered under this
Indenture upon transfer of or in exchange for or in lieu of any
other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other
Security.
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Section 2.04
|
Execution and Authentications
.
|
The Securities shall be signed on
behalf of the Company by one of its Officers. Signatures may be in
the form of a manual or facsimile signature.
The Company may use the facsimile
signature of any Person who shall have been an Officer,
notwithstanding the fact that at the time the Securities shall be
authenticated and delivered or disposed of such Person shall have
ceased to be such an officer of the Company. The Securities may
contain such notations, legends or endorsements required by law,
stock exchange rule or usage. Each Security shall be dated the date
of its authentication by the Trustee.
A Security shall not be valid until
authenticated manually by an authorized signatory of the Trustee,
or by an Authenticating Agent. Such signature shall be conclusive
evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture. At any time and from
time to time after the execution and delivery of this Indenture,
the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a written
order of the Company for the authentication and delivery of such
Securities, signed by an Officer, and the Trustee in accordance
with such written order shall authenticate and deliver such
Securities.
In authenticating such Securities
and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Opinion of Counsel stating that the form and terms
thereof have been established in conformity with the provisions of
this Indenture.
The Trustee shall not be required to
authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee’s own
rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
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Section 2.05
|
Registration of Transfer and Exchange
.
|
(a) Securities
of any series may be exchanged upon presentation thereof at the
office or agency of the Company designated for such purpose in the
Borough of Manhattan, the City and State of New York, for other
Securities of such series of authorized denominations, and for a
like aggregate principal amount, upon payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto,
all as provided in this Section. In respect of any Securities so
surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in
exchange therefor the Security or Securities of the same series
that the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously
outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency
designated for such purpose in the Borough of Manhattan, the City
and State of New York, or such other location designated by the
Company, a register or registers (herein referred to as the
“Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall
register the Securities and the transfers of Securities as in this
Article provided and which at all reasonable times shall be open
for inspection by the Trustee. The registrar for the purpose of
registering Securities and transfer of Securities as herein
provided shall be appointed as authorized by Board Resolution (the
“Security Registrar”).
Upon surrender for transfer of any
Security at the office or agency of the Company designated for such
purpose, the Company shall execute, the Trustee shall authenticate
and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same
series as the Security presented for a like aggregate principal
amount.
All Securities presented or
surrendered for exchange or registration of transfer, as provided
in this Section, shall be accompanied (if so required by the
Company or the Security
Registrar) by a written instrument
or instruments of transfer, in form satisfactory to the Company or
the Security Registrar, duly executed by the registered holder or
by such holder’s duly authorized attorney in
writing.
(c) Except
as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and set forth in an Officers’ Certificate, or
established in one or more indentures supplemental to this
Indenture, no service charge shall be made for any exchange or
registration of transfer of Securities, or issue of new Securities
in case of partial redemption of any series, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not
involving any transfer.
(d) The
Company shall not be required (i) to issue, exchange or register
the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a
notice of redemption of less than all the Outstanding Securities of
the same series and ending at the close of business on the day of
such mailing, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption,
other than the unredeemed portion of any such Securities being
redeemed in part. The provisions of this Section 2.05 are, with
respect to any Global Security, subject to Section 2.11
hereof.
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Section 2.06
|
Temporary Securities .
|
Pending the preparation of
definitive Securities of any series, the Company may execute, and
the Trustee shall authenticate and deliver, temporary Securities
(printed, lithographed or typewritten) of any authorized
denomination. Such temporary Securities shall be substantially in
the form of the definitive Securities in lieu of which they are
issued, but with such omissions, insertions and variations as may
be appropriate for temporary Securities, all as may be determined
by the Company. Every temporary Security of any series shall be
executed by the Company and be authenticated by the Trustee upon
the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities of such series. Without
unnecessary delay the Company will execute and will furnish
definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange
therefor (without charge to the holders), at the office or agency
of the Company designated for the purpose in the Borough of
Manhattan, the City and State of New York, and the Trustee shall
authenticate and such office or agency shall deliver in exchange
for such temporary Securities an equal aggregate principal amount
of definitive Securities of such series, unless the Company advises
the Trustee to the effect that definitive Securities need not be
executed and furnished until further notice from the Company. Until
so exchanged, the temporary Securities of such series shall be
entitled to the same benefits under this Indenture as definitive
Securities of such series authenticated and delivered
hereunder.
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Section 2.07
|
Mutilated, Destroyed, Lost or Stolen
Securities.
|
In case any temporary or definitive
Security shall become mutilated or be destroyed, lost or stolen,
the Company (subject to the next succeeding sentence) shall
execute, and upon the Company’s request the Trustee (subject
as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in
exchange
and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each
of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and the Trustee
evidence to their satisfaction of the destruction, loss or theft of
the applicant’s Security and of the ownership thereof. The
Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any officer
of the Company. Upon the issuance of any substituted Security, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
In case any Security that has
matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a
substitute Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may
require to save them harmless, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the Trustee
of the destruction, loss or theft of such Security and of the
ownership thereof.
Every replacement Security issued
pursuant to the provisions of this Section shall constitute an
additional contractual obligation of the Company whether or not the
mutilated, destroyed, lost or stolen Security shall be found at any
time, or be enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and
all other Securities of the same series duly issued hereunder. All
Securities shall be held and owned upon the express condition that
the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities, and shall preclude (to the extent lawful) any and all
other rights or remedies, notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
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Section 2.08
|
Cancellation .
|
All Securities surrendered for the
purpose of payment, redemption, exchange or registration of
transfer shall, if surrendered to the Company or any paying agent,
be delivered to the Trustee for cancellation, or, if surrendered to
the Trustee, shall be cancelled by it, and no Securities shall be
issued in lieu thereof except as expressly required or permitted by
any of the provisions of this Indenture. On request of the Company
at the time of such surrender, the Trustee shall deliver to the
Company canceled Securities held by the Trustee. In the absence of
such request the Trustee may dispose of canceled Securities in
accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise
acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
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Section 2.09
|
Benefits of Indenture .
|
Nothing in this Indenture or in the
Securities, express or implied, shall give or be construed to give
to any Person, other than the parties hereto and the holders of the
Securities (and, with respect to the provisions of Article
Fourteen, the holders of any indebtedness of the Company to which
the Securities of any series are subordinated) any legal or
equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being for
the sole benefit of the parties hereto and of the holders of the
Securities (and, with respect to the provisions of Article
Fourteen, the holders of any indebtedness of the Company to which
the Securities of any series are subordinated).
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Section 2.10
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Authenticating Agent.
|
So long as any of the Securities of
any series remain Outstanding there may be an Authenticating Agent
for any or all such series of Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or partial
redemption thereof, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee
hereunder. All references in this Indenture to the authentication
of Securities by the Trustee shall be deemed to include
authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be acceptable to the Company and shall
be a corporation that has a combined capital and surplus, as most
recently reported or determined by it, sufficient under the laws of
any jurisdiction under which it is organized or in which it is
doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject
to supervision or examination by federal or state authorities. If
at any time any Authenticating Agent shall cease to be eligible in
accordance with these provisions, it shall resign
immediately.
Any Authenticating Agent may at any
time resign by giving written notice of resignation to the Trustee
and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of any Authenticating
Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation,
termination or cessation of eligibility of any Authenticating
Agent, the Trustee may appoint an eligible successor Authenticating
Agent acceptable to the Company. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become
vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent
pursuant hereto.
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Section 2.11
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Global Securities .
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(a) If
the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a Global
Security that (i) shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all of the
Outstanding Securities of such series, (ii) shall be registered in
the name of the
Depositary or its nominee, (iii)
shall be delivered by the Trustee to the Depositary or pursuant to
the Depositary’s instruction and (iv) shall bear a legend
substantially to the following effect: “Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of
the Depositary or to a successor Depositary or to a nominee of such
successor Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may
be transferred, in whole but not in part and in the manner provided
in Section 2.05, only to another nominee of the Depositary for such
series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor
Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies
the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for
such series shall no longer be registered or in good standing under
the Exchange Act, or other applicable statute or regulation, and a
successor Depositary for such series is not appointed by the
Company within 90 days after the Company receives such notice or
becomes aware of such condition, as the case may be, or if an Event
of Default has occurred and is continuing and the Company has
received a request from the Depositary, this Section 2.11 shall no
longer be applicable to the Securities of such series and the
Company will execute, and subject to Section 2.04, the Trustee will
authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange
for such Global Security. In addition, the Company may at any time
determine that the Securities of any series shall no longer be
represented by a Global Security and that the provisions of this
Section 2.11 shall no longer apply to the Securities of such
series. In such event the Company will execute and, subject to
Section 2.04, the Trustee, upon receipt of an Officers’
Certificate evidencing such determination by the Company, will
authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange
for such Global Security. Upon the exchange of the Global Security
for such Securities in definitive registered form without coupons,
in authorized denominations, the Global Security shall be canceled
by the Trustee. Such Securities in definitive registered form
issued in exchange for the Global Security pursuant to this Section
2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such
Securities are so registered.
ARTICLE 3
REDEMPTION OF SECURITIES AND
SINKING FUND PROVISIONS
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Section 3.01
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Redemption .
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The Company may redeem the
Securities of any series issued hereunder on and after the dates
and in accordance with the terms established for such series
pursuant to Section 2.01 hereof.
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Section 3.02
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Notice of Redemption .
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(a) In
case the Company shall desire to exercise such right to redeem all
or, as the case may be, a portion of the Securities of any series
in accordance with any right the Company reserved for itself to do
so pursuant to Section 2.01 hereof, the Company shall, or shall
cause the Trustee to, give notice of such redemption to holders of
the Securities of such series to be redeemed by mailing, first
class postage prepaid, a notice of such redemption not less than 30
days and not more than 90 days before the date fixed for redemption
of that series to such holders at their last addresses as they
shall appear upon the Security Register, unless a shorter period is
specified in the Securities to be redeemed. Any notice that is
mailed in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the registered holder
receives the notice. In any case, failure duly to give such notice
to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall
not affect the validity of the proceedings for the redemption of
any other Securities of such series or any other series. In the
case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers’ Certificate evidencing
compliance with any such restriction.
Each such notice of redemption shall
specify the date fixed for redemption and the redemption price at
which Securities of that series are to be redeemed, and shall state
that payment of the redemption price of such Securities to be
redeemed will be made at the office or agency of the Company in the
Borough of Manhattan, the City and State of New York, upon
presentation and surrender of such Securities, that interest
accrued to the date fixed for redemption will be paid as specified
in said notice, that from and after said date interest will cease
to accrue and that the redemption is for a sinking fund, if such is
the case. If less than all the Securities of a series are to be
redeemed, the notice to the holders of Securities of that series to
be redeemed in part shall specify the particular Securities to be
so redeemed.
In case any Security is to be
redeemed in part only, the notice that relates to such Security
shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date,
upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion
thereof will be issued.
(b) If
less than all the Securities of a series are to be redeemed, the
Company shall give the Trustee at least 45 days’ notice
(unless a shorter notice shall be satisfactory to the Trustee) in
advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and
thereupon the Trustee shall select, by lot or in such other manner
as it shall deem appropriate and fair in its discretion and that
may provide for the selection of a portion or portions (equal to
one thousand U.S. dollars ($1,000) or any integral multiple
thereof) of the principal amount of such Securities of a
denomination larger than
$1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in
writing of the numbers of the Securities to be redeemed, in whole
or in part. The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by an Officer,
instruct the Trustee or any paying agent to call all or any part of
the Securities of a particular series for redemption and to give
notice of redemption in the manner set forth in this Section, such
notice to be in the name of the Company or its own name as the
Trustee or such paying agent may deem advisable. In any case in
which notice of redemption is to be given by the Trustee or any
such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying
agent, as the case may be, such Security Register, transfer books
or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of this
Section.
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Section 3.03
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Payment Upon Redemption .
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(a) If
the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and
payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the
date fixed for redemption and interest on such Securities or
portions of Securities shall cease to accrue on and after the date
fixed for redemption, unless the Company shall default in the
payment of such redemption price and accrued interest with respect
to any such Security or portion thereof. On presentation and
surrender of such Securities on or after the date fixed for
redemption at the place of payment specified in the notice, said
Securities shall be paid and redeemed at the applicable redemption
price for such series, together with interest accrued thereon to
the date fixed for redemption (but if the date fixed for redemption
is an interest payment date, the interest installment payable on
such date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to Section
2.03).
(b) Upon
presentation of any Security of such series that is to be redeemed
in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is
presented shall deliver to the holder thereof, at the expense of
the Company, a new Security of the same series of authorized
denominations in principal amount equal to the unredeemed portion
of the Security so presented.
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Section 3.04
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Sinking Fund .
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The provisions of Sections 3.04,
3.05 and 3.06 shall be applicable to any sinking fund for the
retirement of Securities of a series, except as otherwise specified
as contemplated by Section 2.01 for Securities of such
series.
The minimum amount of any sinking
fund payment provided for by the terms of Securities of any series
is herein referred to as a “mandatory sinking fund
payment,” and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein
referred to as an “optional sinking fund payment”. If
provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to
reduction as provided in Section
3.05. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of
Securities of such series.
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Section 3.05
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Satisfaction of Sinking Fund Payments with
Securities .
|
The Company (i) may deliver
Outstanding Securities of a series and (ii) may apply as a credit
Securities of a series that have been redeemed either at the
election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the
terms of such series, provided that such Securities have not been
previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the redemption price
specified in such Securities for redemption through operation of
the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
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Section 3.06
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Redemption of Securities for Sinking
Fund .
|
Not less than 45 days prior to each
sinking fund payment date for any series of Securities (unless a
shorter period shall be satisfactory to the Trustee), the Company
will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 3.05 and
the basis for such credit and will, together with such
Officers’ Certificate, deliver to the Trustee any Securities
to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 3.
