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Exhibit 4.5
VASCULAR SOLUTIONS, INC.
to
----------------------------------------
as Trustee
SENIOR DEBT SECURITIES
INDENTURE
Dated as of __________________, ____
<PAGE>
VASCULAR SOLUTIONS, INC.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of __________________, ____
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
----------- -----------------
310(a)(1) ...................................... 812
(a)(2) ...................................... 812
(a)(3) ...................................... N.A.
(a)(4) ...................................... N.A.
(a)(5) ...................................... 812
(b) ...................................... 809; 812
(c) ...................................... N.A.
311(a) ...................................... 813
(b) ...................................... 813
(c) ...................................... N.A.
312(a) ...................................... 806
(b) ...................................... 109
(c) ...................................... 109
313(a) ...................................... 807
(b)(1) ...................................... N.A.
(b)(2) ...................................... 807
(c) ...................................... 807
(d) ...................................... 807
314(a) ...................................... 504
(b) ...................................... N.A.
(c)(1) ...................................... 104
(c)(2) ...................................... 104
(c)(3) ...................................... N.A.
(d) ...................................... N.A.
(e) ...................................... 104
(f) ...................................... N.A.
315(a) ...................................... 801
(b) ...................................... 805
(c) ...................................... 801
(d) ...................................... 705; 801
(e) ...................................... 711
316(a)(last ...................................... 101
sentence)
(a)(1)(A) ...................................... 705
(a)(1)(B) ...................................... 704
(a)(2) ...................................... N.A.
(b) ...................................... 707
(c) ...................................... 106
317(a)(1) ...................................... 708
(a)(2) ...................................... 709
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(b) ...................................... 503
318(a) ...................................... 1301
(b) ...................................... N.A.
(c) ...................................... 1301
N.A. means not applicable.
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be part of the Indenture.
ii
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE..........................1
Section 101. Definitions............................................1
Section 102. Other Definitions......................................6
Section 103. Incorporation by Reference of TIA......................7
Section 104. Compliance Certificates and Opinions...................7
Section 105. Form of Documents Delivered to Trustee.................8
Section 106. Acts of Holders........................................8
Section 107. Notices, Etc., to Trustee and Company.................10
Section 108. Notice to Holders; Waiver.............................11
Section 109. Communication by Holders with Other Holders...........11
Section 110. Rules of Construction.................................11
ARTICLE II. SECURITY FORMS....................................................12
Section 201. Forms Generally.......................................12
Section 202. Form of Trustee's Certificate of Authentication.......12
Section 203. Form of Legend for Global Securities..................12
ARTICLE III. THE SECURITIES...................................................13
Section 301. Amount Unlimited; Issuable in Series..................13
Section 302. Denominations.........................................15
Section 303. Execution, Authentication, Delivery and Dating........16
Section 304. Temporary Securities..................................18
Section 305. Registration, Registration of Transfer and Exchange...18
Section 306. Mutilated, Destroyed, Lost and Stolen Securities......20
Section 307. Payment of Interest; Interest Rights Preserved........21
Section 308. Persons Deemed Owners.................................22
Section 309. Cancellation..........................................22
Section 310. Computation of Interest...............................23
Section 311. CUSIP Number..........................................23
ARTICLE IV. REDEMPTION OF SECURITIES..........................................23
Section 401. Applicability of Article..............................23
Section 402. Notices to Trustee....................................23
Section 403. Selection of Securities to Be Redeemed................24
Section 404. Notice of Redemption..................................24
Section 405. Effect of Notice of Redemption........................25
Section 406. Deposit of Redemption Price...........................25
Section 407. Securities Payable on Redemption Date.................25
Section 408. Securities Redeemed in Part...........................26
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ARTICLE V. COVENANTS..........................................................26
Section 501. Payment of Principal, Premium and Interest............26
Section 502. Maintenance of Office or Agency.......................27
Section 503. Money for Securities Payments to Be Held in Trust.....27
Section 504. Commission Reports....................................28
Section 505. Compliance Certificate................................29
Section 506. Taxes.................................................30
Section 507. Stay, Extension and Usury Laws........................30
Section 508. Corporate Existence...................................30
Section 509. Calculation of Original Issue Discount................30
Section 510. Waiver of Certain Covenants...........................30
ARTICLE VI. SUCCESSORS........................................................31
Section 601. Limitations On Mergers, Consolidations or
Sales of Assets.......................................31
Section 602. Successor Corporation Substituted.....................31
ARTICLE VII. DEFAULTS AND REMEDIES............................................32
Section 701. Events of Default.....................................32
Section 702. Acceleration..........................................33
Section 703. Other Remedies........................................34
Section 704. Waiver of Past Defaults...............................34
Section 705. Control by Majority...................................34
Section 706. Limitation on Suits...................................35
Section 707. Rights of Holders to Receive Payment..................35
Section 708. Collection Suit by Trustee............................35
Section 709. Trustee May File Proofs of Claim......................36
Section 710. Priorities............................................36
Section 711. Undertaking for Costs.................................37
ARTICLE VIII. TRUSTEE.........................................................37
Section 801. Duties of Trustee.....................................37
Section 802. Rights of Trustee.....................................38
Section 803. Individual Rights of Trustee..........................39
Section 804. Trustee's Disclaimer..................................39
Section 805. Notice of Defaults....................................39
Section 806. Preservation of Information...........................39
Section 807. Reports by Trustee to Holders.........................39
Section 808. Compensation and Indemnity............................40
Section 809. Resignation and Removal; Appointment of Successor.....40
Section 810. Acceptance of Appointment by Successor................42
Section 811. Merger, Conversion, Consolidation or
Succession to Business................................43
Section 812. Eligibility; Disqualification.........................43
Section 813. Preferential Collection of Claims Against Company.....44
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Section 814. Appointment of Authenticating Agent...................44
Section 815. Trustee's Application for Instructions
from the Company......................................45
ARTICLE IX. DISCHARGE OF INDENTURE............................................46
Section 901. Defeasance and Discharge of this Indenture
and the Securities....................................46
Section 902. Legal Defeasance and Discharge........................46
Section 903. Covenant Defeasance...................................46
Section 904. Conditions to Legal or Covenant Defeasance............47
Section 905. Deposited Money and Government Securities
to be Held in Trust; Other Miscellaneous
Provisions............................................48
Section 906. Repayment to Company..................................49
Section 907. Reinstatement.........................................49
ARTICLE X. AMENDMENT, SUPPLEMENT AND WAIVER...................................50
Section 1001. Without Consent of Holders............................50
Section 1002. With Consent of Holders...............................51
Section 1003. Execution of Supplemental Indentures..................52
Section 1004. Effect of Supplemental Indentures.....................52
Section 1005. Compliance with TIA...................................52
Section 1006. Revocation and Effect of Consents.....................52
Section 1007. Reference in Securities to Supplemental Indentures....53
Section 1008. Notice of Supplemental Indentures.....................53
ARTICLE XI. SINKING FUNDS.....................................................53
Section 1101. Applicability of Article..............................53
Section 1102. Satisfaction of Sinking Fund
Payments with Securities..............................53
Section 1103. Redemption of Securities for Sinking Fund.............54
ARTICLE XII. REPURCHASE OF SECURITIES AT OPTION OF HOLDERS....................54
Section 1201. Applicability of Article..............................54
Section 1202. Notice of Repurchase Date.............................54
Section 1203. Deposit of Repurchase Price...........................55
Section 1204. Securities Payable on Repurchase Date.................55
Section 1205. Securities Repurchased in Part........................56
ARTICLE XIII. MISCELLANEOUS...................................................56
Section 1301. TIA Controls..........................................56
Section 1302. Rules by Trustee and Agents...........................56
Section 1303. Legal Holidays........................................56
Section 1304. No Personal Liability of Directors, Officers,
Employees and Stockholders............................57
Section 1305. Governing Law.........................................57
Section 1306. No Adverse Interpretation of Other Agreements.........57
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Section 1307. Successors............................................57
Section 1308. Severability..........................................57
Section 1309. Benefits of Indenture.................................57
Section 1310. Counterpart Originals.................................57
Section 1311. Table of Contents, Headings, etc......................58
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<PAGE>
INDENTURE, dated as of __________________, ____, between VASCULAR
SOLUTIONS, INC., a corporation duly incorporated and existing under the laws of
the State of Minnesota (herein called the "COMPANY"), having its principal
office at 6464 Sycamore Court, Minneapolis, Minnesota 55369, and
_____________________________________________, a _______________________, as
Trustee (herein called the "TRUSTEE"), having its principal corporate trust
office at ________________________________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its notes or other
evidences of indebtedness (herein called the "SECURITIES"), to be issued in one
or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof (including holders from time to time of the Securities of any series
held through a Holder which is a Depositary (as defined herein)), as follows:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 101. DEFINITIONS.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"AGENT" means any Authenticating Agent, Security Registrar, Paying
Agent or co-registrar.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or any
duly authorized (generally or in any particular respect) committee appointed by
that 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. Where any provision of this Indenture refers to action to be
taken pursuant to a Board Resolution (including establishment of any series of
the Securities and the forms and terms thereof), such action may be taken by
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any committee, officer or employee of the Company authorized to take such
action (generally or in any particular respect) by a Board Resolution.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate stock
without limitation, common stock and preferred stock, (ii) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, (iii) in
the case of a partnership, partnership interests (whether general or limited)
and (iv) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of assets of,
the issuing Person.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common stock, par value $.01 per share, of the
Company.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument, as obligor under the Securities, unless and until
a successor replaces the Company in accordance with Article 6 hereof and
thereafter means such successor.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its its President, its Chief Executive
Officer, its Chief Financial Officer, an Executive or Senior Vice President, its
Secretary or an Assistant Secretary, or by any other officer of the Company
authorized to sign by a Board Resolution, and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which at the date of original execution of the Indenture is
_______________________________________________________.
"DEFAULT" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the clearing agency registered under the Exchange Act, specified for
that purpose as contemplated by Section 301 or any successor clearing agency
registered under the Exchange Act as contemplated by Section 305, and if at any
time there is more than one such Person, "Depositary" as used with respect to
the Securities of any series shall mean the Depositary with respect to the
Securities of such series.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to the date
that is 91 days after the date on which the Securities of any series then
outstanding mature.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
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"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession in the United States, which are in effect from time to time.
"GLOBAL SECURITY" means a Security bearing the legend specified in
Section 203 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or nominee.
"GOVERNMENT SECURITIES" means securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof.
"HOLDER" means a Person in whose name a Security is registered.
"INDEBTEDNESS" means any indebtedness for money borrowed.
"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 pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument due to the appointment of
one or more separate Trustees for any one or more separate series of Securities
pursuant to Section 809(e), "Indenture" shall mean, with respect to such series
of Securities for which any such Person is Trustee, 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 pursuant to the
applicable provisions hereof and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"INTEREST," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"INTEREST PAYMENT DATE," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"LIEN" means any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind.
"MATURITY," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
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"OFFICERS" means the President, the Chief Executive Officer, the Chief
Financial Officer, the Secretary, any Assistant Secretary and any Vice President
of the Company or any Subsidiary, as the case may be.
"OFFICERS' CERTIFICATE" means a certificate signed by the President,
the Chief Executive Officer, the Chief Financial Officer, an Executive or Senior
Vice President, and by the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company, any Subsidiary or the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 702.
"OUTSTANDING," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for the payment or redemption of which money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 702, and (ii) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as
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Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of (and premium, if any) and/or interest on any Securities on behalf
of the Company.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time the specific terms of which Securities, including without
limitation the rate or rates of interest (or formula for determining the rate or
rates of interest), if any, thereon, the Stated Maturity or Maturities thereof
and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization (including
any subdivision or ongoing business of any such entity or substantially all of
the assets of any such entity, subdivision or business).
"PLACE OF PAYMENT," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and/or interest on the Securities of that series are payable.
"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 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"REDEMPTION DATE," when used with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption pursuant to
this Indenture.
"REDEMPTION PRICE," when used with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"REPURCHASE DATE," when used with respect to any Security or portion
thereof to be repurchased, means the date fixed for such repurchase pursuant to
this Indenture.
"REPURCHASE PRICE," when used with respect to any Security or portion
thereof to be repurchased, means the price at which it is to be repurchased
pursuant to this Indenture.
"RESPONSIBLE OFFICER," shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time
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shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"STATED MATURITY," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939, as amended, as in effect
on the date on which this Indenture is qualified under the TIA.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
Section 102. OTHER DEFINITIONS.
TERM DEFINED IN SECTION
"BANKRUPTCY LAW" 701
"COVENANT DEFEASANCE" 903
"CUSTODIAN" 701
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"EVENT OF DEFAULT" 701
"LEGAL DEFEASANCE" 902
"LEGAL HOLIDAY" 1303
"NOTICE OF DEFAULT" 701
Section 103. INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means a Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Securities means the Company and any successor obligor
upon the Securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them.
Section 104. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
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(3) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation
as is necessary to enable him or her to express an informed
opinion whether such covenant or condition has been complied
with; and
(4) a statement whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Every such certificate provided under this Indenture shall be without
personal recourse to the individual executing the same and may include an
express statement to such effect.
Section 105. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of any officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate, opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company. Any certificate or opinion of counsel may be stated to be based on the
certificates or opinions of other counsel, in which event it shall be
accompanied by a copy of such other certificates or opinions.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument. All applications, requests, certificates, statements or
other instruments given under this Indenture shall be without personal recourse
to any individual giving the same and may include an express statement to such
effect.
Section 106. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders (including Persons
who hold their Securities through a Holder which is a Depositary) in person
or by an agent duly appointed in writing, and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of
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execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 801) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
Without limiting the generality of the foregoing, a Holder, including a
Depositary that is a Holder of a Global Security, may make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be made, given or taken by the Holders, and a Depositary that is a
Holder of a Global Security may provide its proxy or proxies to the beneficial
owners of interest in any such Global Security.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner provided that, in
any instance, the Trustee may require further proof with respect to any matter
referred to in this Section.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) The Company may fix any day as the record date for the purpose of
determining the Holders (including Persons who hold Securities through a Holder
which is a Depositary) of Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by any Person
in respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to TIA ss. 312) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders
(including Persons who hold Securities through a Holder which is a Depositary)
of one or more series of Securities, only the Holders of Securities of such
series on such date (or their duly designated proxies) shall be entitled to give
or take, or vote on, the relevant action.
With regard to any action that may be given or taken hereunder only by
Holders (including Persons who hold their Securities through a Holder which is a
Depositary) of a requisite principal amount of Outstanding Securities of any
series (or their duly appointed agents) and for which a record date is set
pursuant to this subsection (d), the Company may, at its option, set an
expiration date after which no such action purported to be given or taken by any
Holder shall be effective hereunder unless given or taken on or prior to such
expiration date by Holders (including Persons who hold Securities through a
Holder which is a Depositary) of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this subsection (d), the
Company may, on one or more occasions at its option, extend such date to any
later date. Nothing in this subsection (d) shall prevent any Holder (or any duly
appointed agent thereof) from giving or taking, after any expiration date, any
action identical to, or, at any time, contrary to or different from any action
given or taken, or purported to have been given and taken, hereunder by a Holder
on or prior to such date, in which event the Company may set a record date in
respect hereof pursuant to this subsection (d).
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Notwithstanding the foregoing, upon actual receipt by a Responsible
Officer of the Trustee, with respect to Securities of any series, of (i) any
Notice of Default pursuant to Section 701, (ii) any declaration or acceleration,
or any rescission and annulment of any such declaration, pursuant to Section
702, or (iii) any waiver given pursuant to Section 704 (any such notice,
declaration, rescission and annulment, or waiver being referred to herein as a
"DIRECTION"), a record date shall automatically and without any other action by
any Person be set for the purpose of determining the Holders (including Persons
who hold Securities through a Holder which is a Depositary) of Outstanding
Securities of such series entitled to join in such Direction, which record date
shall be the close of business on the day the Trustee receives such Direction.
The Holders (including Persons who hold Securities through a Holder which is a
Depositary) of Outstanding Securities of such series on such record date (or
their duly appointed agents), and only such Persons, shall be entitled to join
in such Direction, whether or not such Holders remain Holders after such record
date; provided that, unless such Direction shall have become effective by virtue
of Holders (including Persons who hold Securities through a Holder which is a
Depositary) of the requisite principal amount of Outstanding Securities of such
series on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such Direction shall
automatically and without any action by any Person be canceled and be of no
further effect. Nothing in this paragraph shall prevent a Holder (or duly
appointed agent thereof) from giving, before or after the expiration of such
90-day period, a Direction contrary to or different from, or, after the
expiration of such period, identical to, a Direction that has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date in respect thereof shall be set pursuant to this subsection (d).
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 107. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, postage
prepaid and return receipt requested, or sent by overnight
courier to a Responsible Officer of the Trustee at its
Corporate Trust Office, Attention: Corporate Trust
Administration, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, postage
prepaid and return receipt requested, or sent by overnight
courier to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
instrument (Attention: General
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Counsel) or at any other address previously furnished
in writing to a Responsible Officer of the Trustee by the
Company.
Section 108. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder (including
Persons who hold Securities through a Holder which is a Depositary if the name
and address of such beneficial holder has been provided in writing to the Person
required to give such notice prior to the date such notice is given) affected by
such event, at such Holder's address as it appears in the Security Register or
as provided in writing by the Depositary, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Any
notice mailed to the Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
a Responsible Officer of the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made by or with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 109. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
Section 110. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular; and
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(5) provisions apply to successive events and transactions.
ARTICLE II.
SECURITY FORMS
Section 201. FORMS GENERALLY.
The Securities of each series, including Global Securities representing
Securities of such series, shall be in the form established, without the
approval of any Holders or the Trustee, by or pursuant to a Board Resolution in
accordance with Section 301 or by one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities may be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein and
issued pursuant to the within-mentioned Indenture.
Dated: _____________________________
__________________________, as Trustee
By ________________________________
Authorized Signatory
Section 203. FORM OF LEGEND FOR GLOBAL SECURITIES.
Any Global Security authenticated and delivered hereunder shall, in
addition to the provisions established by or pursuant to a Board Resolution or
in one or more indentures supplemental hereto in accordance with Section 201,
bear a legend in substantially the following form or such similar form as may be
required by the Depositary:
"Unless this certificate is presented by an authorized
representative of [Depositary] to the issuer or to its agent
for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of [Depositary
Nominee] or such other name as requested by an authorized
representative of [Depositary] and any payment is made to
[Depositary Nominee], ANY
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TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, [Depositary Nominee], has an interest herein."
ARTICLE III.
THE SECURITIES
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established, without the approval of any Holders or the Trustee, by or pursuant
to authority granted by one or more Board Resolutions, and, subject to Section
303, there shall be set forth in an Officers' Certificate, or established in one
or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series, all or any of the following, as applicable:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from
Securities of any other series) and the form of the
Securities of the series;
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in lieu of, other Securities of the series pursuant
to Section 304, 305, 306, 1007 and 1205 and except for any
Securities which, pursuant to Section 303, are deemed never
to have been authenticated and delivered hereunder) and the
absence of such limitation shall mean that the Company may
issue from time to time additional securities of such series
without limitation as to aggregate principal amount;
(3) the Person to whom any interest on a Security of
the series shall be payable, ifother than the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates, or the method by which such date
or dates are determined or extended, on which the principal
or installments of principal and premium, if any, of the
Securities of the series is or are payable;
(5) the rate or rates (which may be fixed or variable)
at which the Securities of the series shall bear interest,
if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest
shall be payable, the Regular Record Date for the interest
payable on any Interest Payment Date and the circumstances,
if any in which the Company may defer interest payments and
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the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(6) whether the Company shall be required to maintain
an office in the Borough of Manhattan, the City of New York
in accordance with Section 502 hereof and the place or
places, if any, where the principal of (and premium, if any)
and interest on Securities of the series shall be payable,
any Securities of the series may be surrendered for
registration of transfer or exchange and notices and demands
to or upon the Company with respect to the Securities of the
series and this Indenture may be served, other than or in
addition to the Corporate Trust Office of the Trustee and
any office maintained for such purpose in the Borough of
Manhattan, the City of New York in accordance with Section
502 hereof;
(7) if applicable, 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 or analogous provisions 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) whether the Securities of the series will be
convertible into or exchangeable for shares of Common Stock,
and if so, the terms and conditions upon which such
Securities will be so convertible or exchangeable, and any
deletions from or modifications or additions to this
Indenture to permit or to facilitate the issuance of such
convertible or exchangeable Securities or the administration
thereof;
(10) the identity of each Security Registrar and Paying
Agent, if other than or in addition to the Trustee;
(11) if the amount of principal of, or any premium or
interest on, any Securities of the series may be determined
by reference to an index or pursuant to a formula, the
manner in which such amounts shall be determined;
(12) the applicability of, and any addition to or
change in, the covenants and definitions currently set forth
in this Indenture;
(13) if other than denominations of $1,000 or any
amount in excess thereof which is an integral multiple of
$1,000, the denominations in which Securities of the series
shall be issuable;
(14) any other event or events of default applicable
with respect to Securities of the series in addition to or
in lieu of those provided in Section 701 and any change in
the right of the Trustee or the Holders to declare the
principal of or any premium or interest on such Securities
due and payable;
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(15) if less 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 702;
(16) whether the Securities of the series shall be
issued in whole or in part in the form of one or more Global
Securities and, if so, (a) the Depositary with respect to
such Global Security or Securities and (b) the circumstances
under which any such Global Security may be exchanged for
Securities registered in the name of, and any transfer f
such Global Security may be registered to, a Person other
than such Depositary or its nominee, if other than as set
forth in Section 305;
(17) if applicable, that the Securities of the series,
in whole or any specified part, shall not be defeasible
pursuant to Section 902 or Section 903 or both such Sections
and, if other than by a Company Order, the manner in which
any election by the Company to defend such Securities shall
be evidenced;
(18) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture,
except as permitted by Section 1001(v)); and
(19) CUSIP numbers.
All Securities of any one series (other than Securities offered in a
Periodic Offering) shall be substantially identical except as to denomination
and except as may otherwise be provided by or pursuant to the Board Resolution
referred to above and, subject to Section 303, set forth, or determined in the
manner provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time. Unless otherwise provided, Securities of a single
series may have different terms, and a series may be reopened, without the
consent of the Holders of Securities of such series, for issuance of additional
Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, 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 setting forth the terms of the series.
With respect to Securities of a series offered in a Periodic Offering,
such Board Resolution and Officers' Certificate or supplemental indenture may
provide general terms or parameters for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company or its agents in accordance with other procedures specified in a Company
Order as contemplated by the third paragraph of Section 303.
Section 302. DENOMINATIONS.
Unless otherwise provided in the applicable Officers' Certificate or
supplemental indenture, the Securities of each series shall be issued in
registered form without coupons in such
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denominations as shall be specified as contemplated by Section 301. In
the absence of any such provisions with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000 or
any amount in excess thereof which is an integral multiple of $1,000.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Chief Executive Officer, its Chief
Operating Officer, its Chief Financial Officer or one of its Vice Presidents,
and attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
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 Company Order for the
authentication and delivery of such Securities, or, in the case of Securities
offered in a Periodic Offering, from time to time in accordance with such other
procedures (including, without limitation, the actual receipt by the Trustee of
electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing by the Company) acceptable to the Trustee as may be
specified from time to time by a Company Order for establishing the specific
terms of particular Securities being so offered, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or forms or terms of the Securities of the series have been established by
or pursuant to one or more Board Resolutions as permitted by Sections 201 and
301, 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 801) shall be
fully protected in conclusively relying upon
(a) an Opinion of Counsel stating:
(1) that the form or forms of such Securities have been
established in conformity with the provisions of this Indenture;
(2) that the terms of such Securities have been established
in conformity with the provisions of this Indenture;
(3) that authentication and delivery of such Securities and
the execution and delivery of the supplemental indenture, if any,
by the Trustee will not violate the terms of the Indenture;
(4) that the Company has the corporate power to issue, and
has duly authorized, such Securities; and
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(5) that such Securities, when authenticated and delivered
by a Responsible Officer of the Trustee and issued by the Company
in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer and
other laws of general applicability relating to or affecting
the enforcement of creditors' rights and to general equity
principles;
(b) an executed supplemental indenture, if any;
(c) a copy of a Board Resolution; and
(d) an Officers' Certificate;
provided, however, that, with respect to Securities of a series offered in a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel in connection only with the first authentication of each form of
Securities of such series and that the opinions described in clauses (a)(2) and
(a)(5) above may state, respectively, that
(2) if the terms of such Securities are to be established
pursuant to a Company Order or pursuant to such procedures as may be
specified from time to time by a Company Order, all as contemplated by
a Board Resolution or action taken pursuant thereto, such terms will
have been duly authorized by the Company and established in conformity
with the provisions of this Indenture; and
(5) that such Securities, when executed by the Company,
completed, authenticated and delivered by the Trustee in accordance
with this Indenture, and issued and delivered by the Company and paid
for, all in accordance with any agreement of the Company relating to
the offering, issuance and sale of such Securities, will be duly issued
under this Indenture and will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer and other
laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general equity principles.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the form or forms and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of
Counsel, Company Order and other documents delivered pursuant to Sections 201
and 301 and this Section, as applicable, in connection with the first
authentication of a form of Securities of such series and it shall not be
necessary for the Company to deliver such Opinion of Counsel and other documents
(except as may be required by the specified other procedures, if any, referred
to above) at or prior to the time of authentication of each Security of such
series unless and until a Responsible Officer of the Trustee receives notice
that such Opinion of Counsel or other documents have been superseded or revoked,
and may assume compliance with any conditions specified in such Opinion of
Counsel (other than any conditions to be performed
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by the Trustee). If such form or forms or terms have been so established, 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.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by a Responsible Officer of the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order a Responsible Officer of the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. In the case of Securities of
any series, such temporary Securities may be in the form of Global Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable, subject to Section
305, for definitive Securities of like tenor of such series upon surrender of
the temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
the Company shall execute and a Responsible Officer of the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series and of like tenor and of any authorized
denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series and tenor.
Section 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the "SECURITY REGISTER") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "SECURITY REGISTRAR" of each series of Securities for
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the purpose of registering Securities and transfers of Securities as herein
provided at the Corporate Trust Office.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in any Place of Payment for such
series, the Company shall execute and a Responsible Officer of the Trustee
shall authenticate and deliver (in the name of the designated transferee or
transferees) one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor and bearing a
number not contemporaneously outstanding.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at the office or agency of the Company in any Place of Payment for
such series. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and a Responsible Officer of the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt and entitled to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 1007 or 1205 not involving any transfer.
The Company may but shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
403 and ending at the close of business on the day of such mailing, (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part or (iii) to register the transfer of or exchange any certificated
Securities during a period beginning five days before the date of Maturity with
respect to such Security and ending on such date of Maturity.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, no Global Security shall be exchangeable pursuant
to this Section 305 for Securities registered in the name of, and no transfer of
a Global Security of any series may be registered to, any Person other than the
Depositary for such Security or its nominee, unless (i) such Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global
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Security or the Company determines that the Depositary is unable to continue as
Depositary and the Company thereafter fails to appoint a successor Depositary,
(ii) the Company provides for such exchange or registration of transfer pursuant
to Section 301 of this Indenture, (iii) the Company executes and delivers to the
Trustee a Company Order that such Global Security shall be so exchangeable and
the transfer thereof so registrable, or (iv) there shall have occurred and be
continuing an Event of Default with respect to the Securities of such series
which entitles the Holders of such Securities to accelerate the maturity
thereof. Upon the occurrence in respect of any Global Security of any series of
any one or more of the conditions specified in clauses (i), (ii), (iii) or
(iv) of the preceding sentence or such other conditions as may be specified as
contemplated by Section 301 for such series, such Global Security may be
exchanged for Securities not bearing the legend specified in Section 203 and
registered in the names of such Persons as may be specified by the Depositary
(including Persons other than the Depositary or its nominees).
Notwithstanding any other provision of this Indenture, a Global
Security may not be transferred except as a whole by the Depositary for such
Global Security to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security, including a Global Security, is surrendered
to the Trustee or the Company, together with such security, bond or indemnity as
may be required by the Trustee or the Company to save each of them and any agent
of either of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security, including a new
Global Security if the mutilated Security was a Global Security, of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security,
including a Global Security if the destroyed, lost or stolen Security was a
Global Security, and (ii) such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security, including a Global Security
if the destroyed, lost or stolen Security was a Global Security, of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed
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in relation thereto and any other expenses (including the fees and expenses of
the Trustee), if any, connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder. A new
Security shall have such legends as appeared on the old Security unless the
Company determines otherwise.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as






