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Exhibit 4.6
VASCULAR SOLUTIONS, INC.
to
----------------------------------------
as Trustee
SUBORDINATED 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.
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(b) ...................................... 707
(c) ...................................... 106
317(a)(1) ...................................... 708
(a)(2) ...................................... 709
(b ...................................... 503
318(a) ...................................... 1401
(b ...................................... N.A.
(c) ...................................... 1401
N.A. means not applicable.
Note: This reconciliation and tie shall not, for any
purpose,
be deemed to be part of the Indenture.
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<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND INCORPORATION BY
REFERENCE..........................1
Section 101.
Definitions............................................1
Section 102. Other
Definitions......................................7
Section 103. Incorporation by Reference of
TIA......................7
Section 104. Compliance Certificates and
Opinions...................8
Section 105. Form of Documents Delivered to
Trustee.................8
Section 106. Acts of
Holders........................................9
Section 107. Notices, Etc., to Trustee and
Company.................11
Section 108. Notice to Holders;
Waiver.............................11
Section 109. Communication by Holders with Other
Holders...........12
Section 110. Rules of
Construction.................................12
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..................13
ARTICLE III. THE
SECURITIES...................................................13
Section 301. Amount Unlimited; Issuable in
Series..................13
Section 302.
Denominations.........................................16
Section 303. Execution, Authentication, Delivery and
Dating........16
Section 304. Temporary
Securities..................................18
Section 305. Registration, Registration of Transfer and
Exchange...19
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..........................................23
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.................................................29
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............................................31
Section 701. Events of
Default.....................................31
Section 702.
Acceleration..........................................33
Section 703. Other
Remedies........................................33
Section 704. Waiver of Past
Defaults...............................34
Section 705. Control by
Majority...................................34
Section 706. Limitation on
Suits...................................34
Section 707. Rights of Holders to Receive
Payment..................35
Section 708. Collection Suit by
Trustee............................35
Section 709. Trustee May File Proofs of
Claim......................35
Section 710.
Priorities............................................36
Section 711. Undertaking for
Costs.................................36
ARTICLE VIII.
TRUSTEE.........................................................37
Section 801. Duties of
Trustee.....................................37
Section 802. Rights of
Trustee.....................................38
Section 803. Individual Rights of
Trustee..........................38
Section 804. Trustee's
Disclaimer..................................38
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............................39
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.....43
Section 814. Appointment of Authenticating
Agent...................43
Section 815. Trustee's Application for Instructions
from the Company......................................45
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ARTICLE IX. DISCHARGE OF
INDENTURE............................................45
Section 901. Defeasance and Discharge of
this Indenture and the Securities.....................45
Section 902. Legal Defeasance and
Discharge........................45
Section 903. Covenant
Defeasance...................................46
Section 904. Conditions to Legal or Covenant
Defeasance............46
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...................................49
Section 1001. Without Consent of
Holders............................49
Section 1002. With Consent of
Holders...............................50
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....52
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.............53
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........................55
ARTICLE XIII.
SUBORDINATION...................................................56
Section 1301. Agreement to
Subordinate..............................56
Section 1302. Distribution on Dissolution,
Liquidation and Reorganization........................56
Section 1303. No Payment When Senior Debt in
Default................57
Section 1304. Payment to Holders of Senior
Debt.....................57
Section 1305.
Subrogation...........................................58
Section 1306. Payment on Securities
Permitted.......................59
Section 1307. Authorization of Holders to
Trustee to Effect Subordination.......................59
Section 1308. No Waiver of Subordination
Provisions.................59
Section 1309. Trustee as Holder of Senior
Debt......................60
Section 1310. Notices to
Trustee....................................60
Section 1311. No Fiduciary Duty by Trustee to
Holders of Senior Debt................................60
Section 1312. Paying Agent Treated as
Trustee.......................60
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ARTICLE XIV.
MISCELLANEOUS....................................................61
Section 1401. TIA
Controls..........................................61
Section 1402. Rules by Trustee and
Agents...........................61
Section 1403. Legal
Holidays........................................61
Section 1404. No Personal Liability of Directors, Officers,
Employees and Stockholders............................61
Section 1405. Governing
Law.........................................61
Section 1406. No Adverse Interpretation of Other
Agreements.........61
Section 1407.
Successors............................................62
Section 1408.
Severability..........................................62
Section 1409. Benefits of
Indenture.................................62
Section 1410. Counterpart
Originals.................................62
Section 1411. Table of Contents, Headings,
etc......................62
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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 any
committee, officer or employee of the Company authorized to take
such action
(generally or in any particular respect) by a Board
Resolution.
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"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 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.
"JUNIOR SUBORDINATED DEBT" means any Indebtedness of the
Company
created or evidenced by an instrument which expressly provides
that such
Indebtedness is subordinated in right of payment to the
Securities.
"LIEN" means any mortgage, lien, pledge, charge, security
interest or
encumbrance of any kind.
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"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.
"OFFICERS" means the President, Chief Executive Officer, the
Chief
Financial Officer, an Executive or Senior Vice President, the
Secretary and any
Assistant Secretary 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, or 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
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<PAGE>
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
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.
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"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 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.
"SENIOR DEBT" means all Indebtedness of the Company, except
(i)
Indebtedness under the Securities, and (ii) Indebtedness
(including, without
limitation, any Junior Subordinated Debt) created or evidenced
by an instrument
which expressly provides that such Indebtedness is subordinated
in right of
payment to any other Indebtedness of the Company.
Notwithstanding anything to
the contrary in the foregoing, Senior Debt shall not include (x)
any
Indebtedness of the Company to any of its Subsidiaries or other
Affiliates and
(y) any Indebtedness incurred for the purchase of goods or
materials or for
services obtained in the ordinary course of business (other than
with the
proceeds of revolving credit borrowings permitted hereby).
"SENIOR PAYMENT DEFAULT" means any default in the payment of
any
Obligation on any Senior Debt when due, whether at the stated
maturity of any
such payment or by declaration of acceleration, call for
redemption, mandatory
repurchase, payment or prepayment or otherwise.
"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).
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"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
"EVENT OF DEFAULT" 701
"LEGAL DEFEASANCE" 902
"LEGAL HOLIDAY" 1403
"NOTICE OF DEFAULT" 701
"PROCEEDINGS" 1302
"OBLIGATIONS" 1302
"SECURITIES PAYMENT" 1302
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.
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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;
(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
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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 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
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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).
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
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<PAGE>
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,
(i) 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
(ii) 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
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.
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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
(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: _____________________________
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__________________________, 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 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
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<PAGE>
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, if other 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 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;
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<PAGE>
(11) if the amount of principal of, orany 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;
(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 of such Global Security may be registered to,
a
Person other than such Depositary or its nominee, if otherthan
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 ections 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
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<PAGE>
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 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:
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(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
(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.
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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 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
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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
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
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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 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
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<PAGE>
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 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 contemplated by Section 301 with
respect
to any series of Securities, interest on any Security which is
payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid
to the Person in whose name that Security (or one or more
Predecessor
Securities) is registered in the Security Register at the close
of business on
the Regular Record Date for such Interest Payment Date.
Any interest on any Security of any series which is payable but
is not
punctually paid or duly provided for on any Interest Payment
Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the
Holder on the
relevant Regular Record Date by virtue of having been such
Holder, and such
Defaulted Interest may be paid by the Company, at its election
in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such
series
(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 Security of such series 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
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<PAGE>
Trustee shall fix a Special Record Date for the payment of
such
Defaulted Interest which shall be not more than 15 days and not
less
than 5 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 Holder of Securities of such series at such Holder's
address as
it appears in the Security Register, not less than 15 days prior
to
such Special Record Date. Notice of the proposed payment of
such
Defaulted Interest and the Special Record Date therefor having
been so
mailed, such Defaulted Interest shall be paid to the Persons in
whose
names the Securities of such series (or their respective
Predecessor
Securities) are registered at the close of business on such
Special
Record Date and shall no longer be payable pursuant to the
following
clause (2).
(2) The Company may make payment of any Defaulted Interest
on
the Securities of any series 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.
Subject to the foregoing provisions of this Section, each
Security
delivered under this Indenture upon registration of transfer of,
or in exchange
for, or in lieu of, any other Security shall carry the rights to
interest
accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer,
the Company, the Trustee and any agent of the Company or the
Trustee may treat
the Person in whose name such Security is registered in the
Security Register as
the owner of such Security for the purpose of receiving payment
of principal of
(and premium, if any) and (subject to Section 307) interest on
such Security and
for all other purposes whatsoever, whether or not such Security
be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held
on its
behalf by a Depositary (or its nominees) shall have any rights
under this
Indenture with respect to such Global security or any Security
represented
thereby, and such Depositary may be treated by the Company, the
Trustee, and any
agent of the Company or the Trustee as the owner of such Global
Security or any
Security represented thereby for all purposes whatsoever.
Notwithstanding the
foregoing, with respect to any Global Security, nothing herein
shall prevent the
Company, the Trustee, or any agent of the Company or the
Trustee, from giving
effect to any written certification, proxy or other
authorization furnished by a
Depositary as Holder of such Global Security, or impair, as
between a Depositary
and the owners of beneficial interests in such Global Security,
the operation of
customary practices governing the exercise of the rights of the
Depositary (or
its nominees) as Holder of such Global Security.
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<PAGE>
Section 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration
of
transfer or exchange or for credit against any sinking fund
payment shall, if
surrendered to any Person other than the Trustee, be delivered
to the Trustee
and shall be promptly canceled by it. The Company may at any
time deliver to the
Trustee for cancellation any Securities previously authenticated
and delivered
hereunder which the Company may have acquired in any manner
whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to
the Trustee) for
cancellation any Securities previously authenticated hereunder
which the Company
has not issued and sold, and all Securities so delivered shall
be promptly
canceled by the Trustee. No Securities shall be authenticated in
lieu of or in
exchange for any Securities canceled as provided in this
Section, except as
expressly permitted by this Indenture. The Trustee is hereby
directed by the
Company to cancel the Securities held by the Trustee (subject to
the record
retention requirements of the Exchange Act), and the Trustee
shall return such
canceled Securities to the Company.
Section 310. COMPUTATION OF INTEREST.
Except as otherwise specified pursuant to Section 301 for
Securities of
any series, interest on the Securities of each series shall be
computed on the
basis of a 360-day year of twelve 30-day months and no interest
will accrue with
respect to the 31st day of any month.
Section 311
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