|
<PAGE>
EXHIBIT 4.1
AASTROM BIOSCIENCES, INC.
ISSUER
AND
[__________________________],
TRUSTEE
INDENTURE
DATED AS OF [______________], 20____
SENIOR DEBT SECURITIES
<PAGE>
CROSS-REFERENCE TABLE(1)
<TABLE>
<CAPTION>
Section of Trust
Indenture Act of Section of
1939, as amended Indenture
---------------- ---------------
<S> <C>
310(a).......................................................
7.09
310(b).......................................................
7.08, 7.10
310(c).......................................................
Inapplicable
311(a).......................................................
7.13(a)
311(b).......................................................
7.13(b)
311(c).......................................................
Inapplicable
312(a).......................................................
5.02(a)
312(b).......................................................
5.02(b)
312(c).......................................................
5.02(c)
313(a).......................................................
5.04(a)
313(b).......................................................
5.04(b)
313(c).......................................................
5.04(a), 5.04(b)
313(d).......................................................
5.04(c)
314(a).......................................................
5.03
314(b).......................................................
Inapplicable
314(c).......................................................
13.06
314(d).......................................................
Inapplicable
314(e).......................................................
13.06
314(f).......................................................
Inapplicable
315(a).......................................................
7.01(a), 7.02
315(b).......................................................
6.07
315(c).......................................................
7.01
315(d).......................................................
7.01(b), 7.01(c)
315(e).......................................................
6.07
316(a).......................................................
6.06, 8.04
316(b).......................................................
6.04
316(c).......................................................
8.01
317(a).......................................................
6.02
317(b).......................................................
4.03
318(a).......................................................
13.08
</TABLE>
(1) This Cross-Reference Table does not constitute part of the
Indenture and
shall not have any bearing on the interpretation of any of its
terms or
provisions.
2
<PAGE>
This INDENTURE, dated as of [_________], 20____, is entered into
between
Aastrom Biosciences, Inc., a Michigan corporation (the
"Company"), and
[_______________], as trustee (the "Trustee"), with respect to
the following
facts:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized
the execution and delivery of this Indenture to provide for the
issuance of
unsecured debt securities (hereinafter referred to as the
"Securities"), in an
unlimited aggregate principal amount to be issued from time to
time in one or
more series as provided in this Indenture, as registered
Securities without
coupons, to be authenticated by the certificate of the
Trustee;
WHEREAS, to provide the terms and conditions upon which the
Securities are
to be authenticated, issued and delivered, the Company has duly
authorized the
execution of this Indenture.
NOW, THEREFORE, in consideration of the premises and the
purchase of the
Securities by the holders thereof, the parties agree as follows
for the equal
and ratable benefit of the holders of Securities:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except as otherwise expressly
provided
in this Indenture or unless the context otherwise requires) for
all purposes of
this Indenture and of any indenture supplemental hereto shall
have the
respective meanings specified in this Section and shall include
the plural as
well as the singular. All other terms used in this Indenture
that are defined in
the Trust Indenture Act of 1939, as amended, or that are by
reference in such
Act defined in the Securities Act of 1933, as amended (except as
herein
otherwise expressly provided or unless the context otherwise
requires), shall
have the meanings assigned to such terms in the Trust Indenture
Act and in the
Securities Act as in force at the date of the execution of this
instrument.
"Authenticating Agent" means an authenticating agent with
respect to all or
any of the series of Securities appointed with respect to all or
any series of
the Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state
law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company
or any
duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary
or an Assistant Secretary of the Company to have been duly
adopted by the Board
of Directors and to be in full force and effect on the date of
such
certification.
3
<PAGE>
"Business Day" means, with respect to any series of Securities,
any day
other than a day on which Federal or State banking institutions
in the Borough
of Manhattan, The City of New York, are authorized or obligated
by law,
executive order or regulation to close.
"Certificate" means a certificate signed by the principal
executive
officer, the principal financial officer or the principal
accounting officer of
the Company. The Certificate need not comply with the provisions
of Section
13.07.
"Company" means Aastrom Biosciences, Inc., a corporation duly
organized and
existing under the laws of the State of Michigan, and, subject
to the provisions
of Article Ten, shall also include its successors and
assigns.
"Corporate Trust Office" means the office of the Trustee at
which, at any
particular time, its corporate trust business shall be
principally administered,
which office at the date hereof is located at [_], except that
whenever a
provision herein refers to an office or agency of the Trustee in
the Borough of
Manhattan, The City of New York, such office is located, at the
date hereof, at
[_].
"Custodian" means any receiver, trustee, assignee, liquidator,
or similar
official under any Bankruptcy Law.
"Default" means any event, act or condition that with notice or
lapse of
time, or both, would constitute an Event of Default.
"Depositary" means, with respect to Securities of any series,
for which the
Company shall determine that such Securities will be issued as a
Global
Security, The Depository Trust Company, New York, New York,
another clearing
agency, or any successor registered as a clearing agency under
the Securities
and Exchange Act of 1934, as amended (the "Exchange Act"), or
other applicable
statute or regulation, which, in each case, shall be designated
by the Company
pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Securities of a
particular series
any event specified in Section 6.01, continued for the period of
time, if any,
therein designated.
"Global Security" means, with respect to any series of
Securities, a
Security executed by the Company and delivered by the Trustee to
the Depositary
or pursuant to the Depositary's instruction, all in accordance
with the
Indenture, which shall be registered in the name of the
Depositary or its
nominee.
"Governmental Obligations" means securities that are (i) direct
obligations
of the United States of America for the payment of which its
full faith and
credit is pledged or (ii) obligations of a Person controlled or
supervised by
and acting as an agency or instrumentality of the United States
of America, the
payment of which is unconditionally guaranteed as a full faith
and credit
obligation by the United States of America that, in either case,
are not
callable or redeemable at the option of the issuer thereof, and
shall also
include a depositary receipt issued by a bank (as defined in
Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with
respect to any such
Governmental Obligation or a specific payment of principal of or
interest on any
such
4
<PAGE>
Governmental Obligation held by such custodian for the account
of the holder of
such depositary receipt; provided, however, that (except as
required by law)
such custodian is not authorized to make any deduction from the
amount payable
to the holder of such depositary receipt from any amount
received by the
custodian in respect of the Governmental Obligation or the
specific payment of
principal of or interest on the Governmental Obligation
evidenced by such
depositary receipt.
"herein," "hereof" and "hereunder," and other words of similar
import,
refer to this Indenture as a whole and not to any particular
Article, Section or
other subdivision.
"Indenture" means this instrument as originally executed or as
it may from
time to time be supplemented or amended by one or more
indentures supplemental
hereto entered into in accordance with the terms hereof.
"Interest Payment Date," when used with respect to any
installment of
interest on a Security of a particular series, means the date
specified in such
Security or in a Board Resolution or in an indenture
supplemental hereto with
respect to such series as the fixed date on which an installment
of interest
with respect to Securities of that series is due and
payable.
"Officers' Certificate" means a certificate signed by the
President or a
Vice President and by the Treasurer or an Assistant Treasurer or
the Controller
or an Assistant Controller or the Secretary or an Assistant
Secretary of the
Company that is delivered to the Trustee in accordance with the
terms hereof.
Each such certificate shall include the statements provided for
in Section
13.07, if and to the extent required by the provisions
thereof.
"Opinion of Counsel" means an opinion in writing of legal
counsel, who may
be an employee of or counsel for the Company, that is delivered
to the Trustee
in accordance with the terms hereof. Each such opinion shall
include the
statements provided for in Section 13.07, if and to the extent
required by the
provisions thereof.
"Outstanding," when used with reference to Securities of any
series, means,
subject to the provisions of Section 8.04, as of any particular
time, all
Securities of that series theretofore authenticated and
delivered by the Trustee
under this Indenture, except (a) Securities theretofore canceled
by the Trustee
or any paying agent, or delivered to the Trustee or any paying
agent for
cancellation or that have previously been canceled; (b)
Securities or portions
thereof for the payment or redemption of which moneys or
Governmental
Obligations in the necessary amount shall have been deposited in
trust with the
Trustee or with any paying agent (other than the Company) or
shall have been set
aside and segregated in trust by the Company (if the Company
shall act as its
own paying agent); provided, however, that if such Securities or
portions of
such Securities are to be redeemed prior to the maturity
thereof, notice of such
redemption shall have been given as in Article Three provided,
or provision
satisfactory to the Trustee shall have been made for giving such
notice; and (c)
Securities in lieu of or in substitution for which other
Securities shall have
been authenticated and delivered pursuant to the terms of
Section 2.07.
5
<PAGE>
"Person" means any individual, corporation, partnership,
joint-venture,
joint- stock company, unincorporated organization or government
or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous
Security evidencing all or a portion of the same debt as that
evidenced by such
particular Security; and, for the purposes of this definition,
any Security
authenticated and delivered under Section 2.07 in lieu of a
lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the
lost, destroyed
or stolen Security.
"Responsible Officer" when used with respect to the Trustee
means the
Chairman of the Board of Directors, the President, any Vice
President, the
Secretary, the Treasurer, any trust officer, any corporate trust
officer or any
other officer or assistant officer of the Trustee customarily
performing
functions similar to those performed by the Persons who at the
time shall be
such officers, respectively, or to whom any corporate trust
matter is referred
because of his or her knowledge of and familiarity with the
particular subject.
"Securities" means the debt Securities authenticated and
delivered under
this Indenture.
"Securityholder," "holder of Securities," "registered holder,"
or other
similar term, means the Person or Persons in whose name or names
a particular
Security shall be registered on the books of the Company kept
for that purpose
in accordance with the terms of this Indenture.
"Subsidiary" means, with respect to any Person, (i) any
corporation at
least a majority of whose outstanding Voting Stock shall at the
time be owned,
directly or indirectly, by such Person or by one or more of its
Subsidiaries or
by such Person and one or more of its Subsidiaries, (ii) any
general
partnership, joint venture or similar entity, at least a
majority of whose
outstanding partnership or similar interests shall at the time
be owned by such
Person, or by one or more of its Subsidiaries, or by such Person
and one or more
of its Subsidiaries and (iii) any limited partnership of which
such Person or
any of its Subsidiaries is a general partner.
"Trustee" means [_], and, subject to the provisions of Article
Seven, shall
also include its successors and assigns, and, if at any time
there is more than
one Person acting in such capacity hereunder, "Trustee" shall
mean each such
Person. The term "Trustee" as used with respect to a particular
series of the
Securities shall mean the trustee with respect to that
series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended,
subject to the provisions of Sections 9.01, 9.02, and 10.01, as
in effect at the
date of execution of this instrument.
"Voting Stock," as applied to stock of any Person, means shares,
interests,
participations or other equivalents in the equity interest
(however designated)
in such Person having ordinary voting power for the election of
a majority of
the directors (or the equivalent) of such Person, other than
shares, interests,
participations or other equivalents having such power only by
reason of the
occurrence of a contingency.
6
<PAGE>
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms of Securities.
(a) The aggregate principal amount of Securities that may be
authenticated
and delivered under this Indenture is unlimited. The Securities
may be issued in
one or more series up to the aggregate principal amount of
Securities of that
series from time to time authorized by or pursuant to a Board
Resolution of the
Company or pursuant to one or more indentures supplemental
hereto. Prior to the
initial issuance of Securities of any series, there shall be
established in or
pursuant to a Board Resolution of the Company, and set forth in
an Officers'
Certificate of the Company, or established in one or more
indentures
supplemental hereto:
(1) the title of the Security of the series (which shall
distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of
that series that may be authenticated and delivered under this
Indenture (except
for Securities authenticated and delivered upon registration of
transfer of, or
in exchange for, or in lieu of, other Securities of that
series);
(3) the date or dates on which the principal of the Securities
of the
series is payable and the place(s) of payment;
(4) the rate or rates at which the Securities of the series
shall bear
interest or the manner of calculation of such rate or rates, if
any;
(5) the date or dates from which such interest shall accrue,
the
Interest Payment Dates on which such interest will be payable or
the manner of
determination of such Interest Payment Dates, the place(s) of
payment, and the
record date for the determination of holders to whom interest is
payable on any
such Interest Payment Dates;
(6) the right, if any, to extend the interest payment periods
and the
duration of such extension;
(7) the period or periods within which, the price or prices at
which
and the terms and conditions upon which, Securities of the
series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase
Securities of the series pursuant to any sinking fund or
analogous provisions
(including payments made in cash in satisfaction of future
sinking fund
obligations) or at the option of a holder thereof and the period
or periods
within which, the price or prices at which, and the terms and
conditions upon
which, Securities of the series shall be redeemed or purchased,
in whole or in
part, pursuant to such obligation;
7
<PAGE>
(9) the form of the Securities of the series including the form
of the
Certificate of Authentication for such series;
(10) if other than denominations of one thousand U.S. dollars
($1,000)
or any integral multiple thereof, the denominations in which the
Securities of
the series shall be issuable;
(11) any and all other terms with respect to such series (which
terms
shall not be inconsistent with the terms of this Indenture, as
amended by any
supplemental indenture) including any terms which may be
required by or
advisable under United States laws or regulations or advisable
in connection
with the marketing of Securities of that series;
(12) whether the Securities are issuable as a Global Security
and, in
such case, the identity of the Depositary for such series;
(13) whether the Securities will be convertible into shares of
common
stock or other securities of the Company and, if so, the terms
and conditions
upon which such Securities will be so convertible, including the
conversion
price and the conversion period;
(14) if other than the principal amount thereof, the portion of
the
principal amount of Securities of the series which shall be
payable upon
declaration of acceleration of the maturity thereof pursuant to
Section 6.01;
and
(15) any additional or different Events of Default or
restrictive
covenants provided for with respect to the Securities of the
series.
All Securities of any one series shall be substantially
identical except as
to denomination and except as may otherwise be provided in or
pursuant to any
such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of the series are established by action
taken pursuant
to a Board Resolution of the Company, a copy of an appropriate
record of such
action shall be certified by the Secretary or an Assistant
Secretary of the
Company and delivered to the Trustee at or prior to the delivery
of the
Officers' Certificate of the Company setting forth the terms of
the series.
Securities of any particular series may be issued at various
times, with
different dates on which the principal or any installment of
principal is
payable, with different rates of interest, if any, or different
methods by which
rates of interest may be determined, with different dates on
which such interest
may be payable and with different redemption dates.
Section 2.02 Form of Securities and Trustee's Certificate.
The Securities of any series and the Trustee's certificate
of
authentication to be borne by such Securities shall be
substantially of the
tenor as set forth in one or more indentures supplemental hereto
or as provided
in a Board Resolution of the Company and as set forth in an
Officers'
Certificate of the Company. The Securities may have such
letters, numbers or
other
8
<PAGE>
marks of identification or designation and such legends or
endorsements printed,
lithographed or engraved thereon as the Company may deem
appropriate and as are
not inconsistent with the provisions of this Indenture, or as
may be required to
comply with any law or with any rule or regulation made pursuant
thereto or with
any rule or regulation of any stock exchange on which Securities
of that series
may be listed, or to conform to usage.
Section 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered Securities and in
the
denominations of one thousand U.S. dollars ($1,000) or any
integral multiple
thereof, subject to Section 2.01(10). The Securities of a
particular series
shall bear interest payable on the dates and at the rate
specified with respect
to that series. The principal of and the interest on the
Securities of any
series, as well as any premium thereon in case of redemption
thereof prior to
maturity, shall be payable in the coin or currency of the United
States of
America that at the time is legal tender for public and private
debt, at the
office or agency of the Company maintained for that purpose in
the Borough of
Manhattan, the City and State of New York. Each Security shall
be dated the date
of its authentication. Interest on the Securities shall be
computed on the basis
of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is
punctually
paid or duly provided for, on any Interest Payment Date for
Securities of that
series shall be paid to the Person in whose name said Security
(or one or more
Predecessor Securities) is registered at the close of business
on the regular
record date for such interest installment. In the event that any
Security of a
particular series or portion thereof is called for redemption
and the redemption
date is subsequent to a regular record date with respect to any
Interest Payment
Date and prior to such Interest Payment Date, interest on such
Security will be
paid upon presentation and surrender of such Security as
provided in Section
3.03.
Any interest on any Security that is payable, but is not
punctually paid or
duly provided for, on any Interest Payment Date for Securities
of the same
series (herein called "Defaulted Interest") shall forthwith
cease to be payable
to the registered holder on the relevant regular record date by
virtue of having
been such holder; and such Defaulted Interest shall be paid by
the Company, at
its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest
on
Securities to the Persons in whose names such Securities (or
their respective
Predecessor Securities) are registered at the close of business
on a special
record date for the payment of such Defaulted Interest, which
shall be fixed in
the following manner: the Company shall notify the Trustee in
writing of the
amount of Defaulted Interest proposed to be paid on each such
Security and the
date of the proposed payment, and at the same time the Company
shall deposit
with the Trustee an amount of money equal to the aggregate
amount proposed to be
paid in respect of such Defaulted Interest or shall make
arrangements
satisfactory to the Trustee for such deposit prior to the date
of the proposed
payment, such money when deposited to be held in trust for the
benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided.
Thereupon the Trustee shall fix a special record date for the
payment of such
Defaulted Interest which shall not be more than 15 nor less than
10 days prior
to the date of the proposed payment and not less than 10 days
after the receipt
by the Trustee of the notice of the proposed payment. The
Trustee shall
9
<PAGE>
promptly notify the Company of such special record date and, in
the name and at
the expense of the Company, shall cause notice of the proposed
payment of such
Defaulted Interest and the special record date therefor to be
mailed, first
class postage prepaid, to each Securityholder at his or her
address as it
appears in the Security Register (as hereinafter defined), not
less than 10 days
prior to such special record date. Notice of the proposed
payment of such
Defaulted Interest and the special record date therefor having
been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names
such Securities (or their respective Predecessor Securities) are
registered on
such special record date.
(2) The Company may make payment of any Defaulted Interest on
any
Securities in any other lawful manner not inconsistent with the
requirements of
any securities exchange on which such Securities may be listed,
and upon such
notice as may be required by such exchange, if, after notice
given by the
Company to the Trustee of the proposed payment pursuant to this
clause, such
manner of payment shall be deemed practicable by the
Trustee.
Unless otherwise set forth in a Board Resolution of the Company
or one or
more indentures supplemental hereto establishing the terms of
any series of
Securities pursuant to Section 2.01 hereof, the term "regular
record date" as
used in this Section with respect to a series of Securities with
respect to any
Interest Payment Date for such series shall mean either the
fifteenth day of the
month immediately preceding the month in which an Interest
Payment Date
established for such series pursuant to Section 2.01 hereof
shall occur, if such
Interest Payment Date is the first day of a month, or the last
day of the month
immediately preceding the month in which an Interest Payment
Date established
for such series pursuant to Section 2.01 hereof shall occur, if
such Interest
Payment Date is the fifteenth day of a month, whether or not
such date is a
Business Day.
Subject to the foregoing provisions of this Section, each
Security of a
series delivered under this Indenture upon transfer of or in
exchange for or in
lieu of any other Security of such series shall carry the rights
to interest
accrued and unpaid, and to accrue, that were carried by such
other Security.
Section 2.04 Execution and Authentications.
The Securities shall be signed on behalf of the Company by its
President,
or one of its Vice Presidents, or its Treasurer, or one of its
Assistant
Treasurers, or its Secretary, or one of its Assistant
Secretaries, under its
corporate seal attested by its Secretary or one of its Assistant
Secretaries.
Signatures may be in the form of a manual or facsimile
signature. The Company
may use the facsimile signature of any Person who shall have
been a President or
Vice President thereof, or of any Person who shall have been a
Secretary or
Assistant Secretary thereof, notwithstanding the fact that at
the time the
Securities shall be authenticated and delivered or disposed of
such Person shall
have ceased to be the President or a Vice President, or the
Secretary or an
Assistant Secretary, of the Company. The seal of the Company may
be in the form
of a facsimile of such seal and may be impressed, affixed,
imprinted or
otherwise reproduced on the Securities. The Securities may
contain such
notations, legends or endorsements required by law, stock
exchange rule or
usage. Each Security shall be dated the date of its
authentication by the
Trustee.
10
<PAGE>
A Security shall not be valid until authenticated manually by an
authorized
signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be
conclusive evidence that the Security so authenticated has been
duly
authenticated and delivered hereunder and that the holder is
entitled to the
benefits of this Indenture. At any time and from time to time
after the
execution and delivery of this Indenture, the Company may
deliver Securities of
any series executed by the Company to the Trustee for
authentication, together
with a written order of the Company for the authentication and
delivery of such
Securities, signed by its President or any Vice President and
its Secretary or
any Assistant Secretary, and the Trustee in accordance with such
written order
shall authenticate and deliver such Securities.
In authenticating such Securities and accepting the
additional
responsibilities under this Indenture in relation to such
Securities, the
Trustee shall be entitled to receive, and (subject to Section
7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating
that the form and
terms thereof have been established in conformity with the
provisions of this
Indenture.
The Trustee shall not be required to authenticate such
Securities if the
issue of such Securities pursuant to this Indenture will affect
the Trustee's
own rights, duties or immunities under the Securities and this
Indenture or
otherwise in a manner that is not reasonably acceptable to the
Trustee.
Section 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged upon presentation
thereof at
the office or agency of the Company designated for such purpose
in the Borough
of Manhattan, the City and State of New York, for other
Securities of such
series of authorized denominations, and for a like aggregate
principal amount,
upon payment of a sum sufficient to cover any tax or other
governmental charge
in relation thereto, all as provided in this Section. In respect
of any
Securities so surrendered for exchange, the Company shall
execute, the Trustee
shall authenticate and such office or agency shall deliver in
exchange therefor
the Security or Securities of the same series that the
Securityholder making the
exchange shall be entitled to receive, bearing numbers not
contemporaneously
outstanding.
(b) The Company shall keep, or cause to be kept, at its office
or agency
designated for such purpose in the Borough of Manhattan, the
City and State of
New York, or such other location designated by the Company a
register or
registers (herein referred to as the "Security Register") in
which, subject to
such reasonable regulations as it may prescribe, the Company
shall register the
Securities and the transfers of Securities as in this Article
provided and which
at all reasonable times shall be open for inspection by the
Trustee. The
registrar for the purpose of registering Securities and transfer
of Securities
as herein provided shall be appointed as authorized by Board
Resolution (the
"Security Registrar").
Upon surrender for transfer of any Security at the office or
agency of the
Company designated for such purpose, the Company shall execute,
the Trustee
shall authenticate and such office or agency shall deliver in
the name of the
transferee or transferees a new Security or Securities of the
same series as the
Security presented for a like aggregate principal amount.
11
<PAGE>
All Securities presented or surrendered for exchange or
registration of
transfer, as provided in this Section, shall be accompanied (if
so required by
the Company or the Security Registrar) by a written instrument
or instruments of
transfer, in form satisfactory to the Company or the Security
Registrar, duly
executed by the registered holder or by such holder's duly
authorized attorney
in writing.
(c) No service charge shall be made for any exchange or
registration of
transfer of Securities, or issue of new Securities in case of
partial redemption
of any series, but the Company may require payment of a sum
sufficient to cover
any tax or other governmental charge in relation thereto, other
than exchanges
pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not
involving any
transfer.
(d) The Company shall not be required (i) to issue, exchange or
register
the transfer of any Securities during a period beginning at the
opening of
business 15 days before the day of the mailing of a notice of
redemption of less
than all the Outstanding Securities of the same series and
ending at the close
of business on the day of such mailing, nor (ii) to register the
transfer of or
exchange any Securities of any series or portions thereof called
for redemption.
The provisions of this Section 2.05 are, with respect to any
Global Security,
subject to Section 2.11 hereof.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company
may execute, and the Trustee shall authenticate and deliver,
temporary
Securities (printed, lithographed or typewritten) of any
authorized
denomination. Such temporary Securities shall be substantially
in the form of
the definitive Securities in lieu of which they are issued, but
with such
omissions, insertions and variations as may be appropriate for
temporary
Securities, all as may be determined by the Company. Every
temporary Security of
any series shall be executed by the Company and be authenticated
by the Trustee
upon the same conditions and in substantially the same manner,
and with like
effect, as the definitive Securities of such series. Without
unnecessary delay
the Company will execute and will furnish definitive Securities
of such series
and thereupon any or all temporary Securities of such series may
be surrendered
in exchange therefor (without charge to the holders), at the
office or agency of
the Company designated for the purpose in the Borough of
Manhattan, the City and
State of New York, and the Trustee shall authenticate and such
office or agency
shall deliver in exchange for such temporary Securities an equal
aggregate
principal amount of definitive Securities of such series, unless
the Company
advises the Trustee to the effect that definitive Securities
need not be
executed and furnished until further notice from the Company.
Until so
exchanged, the temporary Securities of such series shall be
entitled to the same
benefits under this Indenture as definitive Securities of such
series
authenticated and delivered hereunder.
Section 2.07 Mutilated, Destroyed, Lost or Stolen
Securities.
In case any temporary or definitive Security shall become
mutilated or be
destroyed, lost or stolen, the Company (subject to the next
succeeding sentence)
shall execute, and upon the Company's request the Trustee
(subject as aforesaid)
shall authenticate and deliver, a new Security of the same
series, bearing a
number not contemporaneously outstanding, in exchange
12
<PAGE>
and substitution for the mutilated Security, or in lieu of and
in substitution
for the Security so destroyed, lost or stolen. In every case the
applicant for a
substituted Security shall furnish to the Company and the
Trustee such security
or indemnity as may be required by them to save each of them
harmless, and, in
every case of destruction, loss or theft, the applicant shall
also furnish to
the Company and the Trustee evidence to their satisfaction of
the destruction,
loss or theft of the applicant's Security and of the ownership
thereof. The
Trustee may authenticate any such substituted Security and
deliver the same upon
the written request or authorization of any officer of the
Company. Upon the
issuance of any substituted Security, the Company may require
the payment of a
sum sufficient to cover any tax or other governmental charge
that may be imposed
in relation thereto and any other expenses (including the fees
and expenses of
the Trustee) connected therewith. In case any Security that has
matured or is
about to mature shall become mutilated or be destroyed, lost or
stolen, the
Company may, instead of issuing a substitute Security, pay or
authorize the
payment of the same (without surrender thereof except in the
case of a mutilated
Security) if the applicant for such payment shall furnish to the
Company and the
Trustee such security or indemnity as they may require to save
them harmless,
and, in case of destruction, loss or theft, evidence to the
satisfaction of the
Company and the Trustee of the destruction, loss or theft of
such Security and
of the ownership thereof.
Every replacement Security issued pursuant to the provisions of
this
Section shall constitute an additional contractual obligation of
the Company
whether or not the mutilated, destroyed, lost or stolen Security
shall be found
at any time, or be enforceable by anyone, and shall be entitled
to all the
benefits of this Indenture equally and proportionately with any
and all other
Securities of the same series duly issued hereunder. All
Securities shall be
held and owned upon the express condition that the foregoing
provisions are
exclusive with respect to the replacement or payment of
mutilated, destroyed,
lost or stolen Securities, and shall preclude (to the extent
lawful) any and all
other rights or remedies, notwithstanding any law or statute
existing or
hereafter enacted to the contrary with respect to the
replacement or payment of
negotiable instruments or other securities without their
surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose of payment,
redemption, exchange
or registration of transfer shall, if surrendered to the Company
or any paying
agent, be delivered to the Trustee for cancellation, or, if
surrendered to the
Trustee, shall be cancelled by it, and no Securities shall be
issued in lieu
thereof except as expressly required or permitted by any of the
provisions of
this Indenture. On request of the Company at the time of such
surrender, the
Trustee shall deliver to the Company canceled Securities held by
the Trustee. In
the absence of such request the Trustee may dispose of canceled
Securities in
accordance with its standard procedures and deliver a
certificate of disposition
to the Company. If the Company shall otherwise acquire any of
the Securities,
however, such acquisition shall not operate as a redemption or
satisfaction of
the indebtedness represented by such Securities unless and until
the same are
delivered to the Trustee for cancellation.
Section 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall
give or be construed to give to any Person, other than the
parties hereto and
the holders of the Securities
13
<PAGE>
any legal or equitable right, remedy or claim under or in
respect of this
Indenture, or under any covenant, condition or provision herein
contained; all
such covenants, conditions and provisions being for the sole
benefit of the
parties hereto and of the holders of the Securities.
Section 2.10 Authenticating Agent.
So long as any of the Securities of any series remain
Outstanding there may
be an Authenticating Agent for any or all such series of
Securities which the
Trustee shall have the right to appoint. Said Authenticating
Agent shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such
series issued upon exchange, transfer or partial redemption
thereof, and
Securities so authenticated shall be entitled to the benefits of
this Indenture
and shall be valid and obligatory for all purposes as if
authenticated by the
Trustee hereunder. All references in this Indenture to the
authentication of
Securities by the Trustee shall be deemed to include
authentication by an
Authenticating Agent for such series. Each Authenticating Agent
shall be
acceptable to the Company and shall be a corporation that has a
combined capital
and surplus, as most recently reported or determined by it,
sufficient under the
laws of any jurisdiction under which it is organized or in which
it is doing
business to conduct a trust business, and that is otherwise
authorized under
such laws to conduct such business and is subject to supervision
or examination
by Federal or State authorities. If at any time any
Authenticating Agent shall
cease to be eligible in accordance with these provisions, it
shall resign
immediately.
Any Authenticating Agent may at any time resign by giving
written notice of
resignation to the Trustee and to the Company. The Trustee may
at any time (and
upon request by the Company shall) terminate the agency of any
Authenticating
Agent by giving written notice of termination to such
Authenticating Agent and
to the Company. Upon resignation, termination or cessation of
eligibility of any
Authenticating Agent, the Trustee may appoint an eligible
successor
Authenticating Agent acceptable to the Company. Any successor
Authenticating
Agent, upon acceptance of its appointment hereunder, shall
become vested with
all the rights, powers and duties of its predecessor hereunder
as if originally
named as an Authenticating Agent pursuant hereto.
Section 2.11 Global Securities.
(a) If the Company shall establish pursuant to Section 2.01 that
the
Securities of a particular series are to be issued as a Global
Security, then
the Company shall execute and the Trustee shall, in accordance
with Section
2.04, authenticate and deliver, a Global Security that (i) shall
represent, and
shall be denominated in an amount equal to the aggregate
principal amount of,
all of the Outstanding Securities of such series, (ii) shall be
registered in
the name of the Depositary or its nominee, (iii) shall be
delivered by the
Trustee to the Depositary or pursuant to the Depositary's
instruction and (iv)
shall bear a legend substantially to the following effect:
"Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be
transferred, in
whole but not in part, only to another nominee of the Depositary
or to a
successor Depositary or to a nominee of such successor
Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global
Security of
a series may be transferred, in whole but not in part and in the
manner provided
in Section 2.05, only to
14
<PAGE>
another nominee of the Depositary for such series, or to a
successor Depositary
for such series selected or approved by the Company or to a
nominee of such
successor Depositary.
(c) If at any time the Depositary for a series of the Securities
notifies
the Company that it is unwilling or unable to continue as
Depositary for such
series or if at any time the Depositary for such series shall no
longer be
registered or in good standing under the Exchange Act, or other
applicable
statute or regulation, and a successor Depositary for such
series is not
appointed by the Company within 90 days after the Company
receives such notice
or becomes aware of such condition, as the case may be, this
Section 2.11 shall
no longer be applicable to the Securities of such series and the
Company will
execute, and subject to Section 2.05, the Trustee will
authenticate and deliver
the Securities of such series in definitive registered form
without coupons, in
authorized denominations, and in an aggregate principal amount
equal to the
principal amount of the Global Security of such series in
exchange for such
Global Security. In addition, the Company may at any time
determine that the
Securities of any series shall no longer be represented by a
Global Security and
that the provisions of this Section 2.11 shall no longer apply
to the Securities
of such series. In such event the Company will execute and
subject to Section
2.05, the Trustee, upon receipt of an Officers' Certificate
evidencing such
determination by the Company, will authenticate and deliver the
Securities of
such series in definitive registered form without coupons, in
authorized
denominations, and in an aggregate principal amount equal to the
principal
amount of the Global Security of such series in exchange for
such Global
Security. Upon the exchange of the Global Security for such
Securities in
definitive registered form without coupons, in authorized
denominations, the
Global Security shall be canceled by the Trustee. Such
Securities in definitive
registered form issued in exchange for the Global Security
pursuant to this
Section 2.11(c) shall be registered in such names and in such
authorized
denominations as the Depositary, pursuant to instructions from
its direct or
indirect participants or otherwise, shall instruct the Trustee.
The Trustee
shall deliver such Securities to the Depositary for delivery to
the Persons in
whose names such Securities are so registered.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of any series issued
hereunder on and
after the dates and in accordance with the terms established for
such series
pursuant to Section 2.01 hereof.
Section 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to
redeem all
or, as the case may be, a portion of the Securities of any
series in accordance
with the right reserved so to do, the Company shall, or shall
cause the Trustee
to, give notice of such redemption to holders of the Securities
of such series
to be redeemed by mailing, first class postage prepaid, a notice
of such
redemption not less than 30 days and not more than 90 days
before the date fixed
for redemption of that series to such holders at their last
addresses as they
shall appear upon the Security Register unless a shorter period
is specified in
the Securities to be redeemed. Any notice that is
15
<PAGE>
mailed in the manner herein provided shall be conclusively
presumed to have been
duly given, whether or not the registered holder receives the
notice. In any
case, failure duly to give such notice to the holder of any
Security of any
series designated for redemption in whole or in part, or any
defect in the
notice, shall not affect the validity of the proceedings for the
redemption of
any other Securities of such series or any other series. In the
case of any
redemption of Securities prior to the expiration of any
restriction on such
redemption provided in the terms of such Securities or elsewhere
in this
Indenture, the Company shall furnish the Trustee with an
Officers' Certificate
evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption
and the redemption price at which Securities of that series are
to be redeemed,
and shall state that payment of the redemption price of such
Securities to be
redeemed will be made at the office or agency of the Company in
the Borough of
Manhattan, the City and State of New York, upon presentation and
surrender of
such Securities, that interest accrued to the date fixed for
redemption will be
paid as specified in said notice, that from and after said date
interest will
cease to accrue and that the redemption is for a sinking fund,
if such is the
case. If less than all the Securities of a series are to be
redeemed, the notice
to the holders of Securities of that series to be redeemed in
whole or in part
shall specify the particular Securities to be so redeemed. In
case any Security
is to be redeemed in part only, the notice that relates to such
Security shall
state the portion of the principal amount thereof to be
redeemed, and shall
state that on and after the redemption date, upon surrender of
such Security, a
new Security or Securities of such series in principal amount
equal to the
unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be
redeemed, the
Company shall give the Trustee at least 45 days' notice in
advance of the date
fixed for redemption as to the aggregate principal amount of
Securities of the
series to be redeemed, and thereupon the Trustee shall select,
by lot or in such
other manner as it shall deem appropriate and fair in its
discretion and that
may provide for the selection of a portion or portions (equal to
one thousand
U.S. dollars ($1,000) or any integral multiple thereof) of the
principal amount
of such Securities of a denomination larger than $1,000, the
Securities to be
redeemed and shall thereafter promptly notify the Company in
writing of the
numbers of the Securities to be redeemed, in whole or in part.
The Company may,
if and whenever it shall so elect, by delivery of instructions
signed on its
behalf by its President or any Vice President, instruct the
Trustee or any
paying agent to call all or any part of the Securities of a
particular series
for redemption and to give notice of redemption in the manner
set forth in this
Section, such notice to be in the name of the Company or its own
name as the
Trustee or such paying agent may deem advisable. In any case in
which notice of
redemption is to be given by the Trustee or any such paying
agent, the Company
shall deliver or cause to be delivered to, or permit to remain
with, the Trustee
or such paying agent, as the case may be, such Security
Register, transfer books
or other records, or suitable copies or extracts therefrom,
sufficient to enable
the Trustee or such paying agent to give any notice by mail that
may be required
under the provisions of this Section.
Section 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been
completed as
above provided, the Securities or portions of Securities of the
series to be
redeemed specified in such notice shall become due and payable
on the date and
at the place stated in such notice at the applicable
16
<PAGE>
redemption price, together with interest accrued to the date
fixed for
redemption and interest on such Securities or portions of
Securities shall cease
to accrue on and after the date fixed for redemption, unless the
Company shall
default in the payment of such redemption price and accrued
interest with
respect to any such Security or portion thereof. On presentation
and surrender
of such Securities on or after the date fixed for redemption at
the place of
payment specified in the notice, said Securities shall be paid
and redeemed at
the applicable redemption price for such series, together with
interest accrued
thereon to the date fixed for redemption (but if the date fixed
for redemption
is an interest payment date, the interest installment payable on
such date shall
be payable to the registered holder at the close of business on
the applicable
record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such series that is to
be redeemed
in part only, the Company shall execute and the Trustee shall
authenticate and
the office or agency where the Security is presented shall
deliver to the holder
thereof, at the expense of the Company, a new Security of the
same series of
authorized denominations in principal amount equal to the
unredeemed portion of
the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be
applicable to any
sinking fund for the retirement of Securities of a series,
except as otherwise
specified as contemplated by Section 2.01 for Securities of such
series.
The minimum amount of any sinking fund payment provided for by
the terms of
Securities of any series is herein referred to as a "mandatory
sinking fund
payment," and any payment in excess of such minimum amount
provided for by the
terms of Securities of any series is herein referred to as an
"optional sinking
fund payment". If provided for by the terms of Securities of any
series, the
cash amount of any sinking fund payment may be subject to
reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to
the redemption of
Securities of any series as provided for by the terms of
Securities of such
series.
Section 3.05 Satisfaction of Sinking Fund Payments with
Securities.
The Company (i) may deliver Outstanding Securities of a series
(other than
any Securities previously called for redemption) and (ii) may
apply as a credit
Securities of a series that have been redeemed either at the
election of the
Company pursuant to the terms of such Securities or through the
application of
permitted optional sinking fund payments pursuant to the terms
of such
Securities, in each case in satisfaction of all or any part of
any sinking fund
payment with respect to the Securities of such series required
to be made
pursuant to the terms of such Securities as provided for by the
terms of such
series, provided that such Securities have not been previously
so credited. Such
Securities shall be received and credited for such purpose by
the Trustee at the
redemption price specified in such Securities for redemption
through operation
of the sinking fund and the amount of such sinking fund payment
shall be reduced
accordingly.
17
<PAGE>
Section 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date
for any
series of Securities, the Company will deliver to the Trustee an
Officers'
Certificate specifying the amount of the next ensuing sinking
fund payment for
that series pursuant to the terms of the series, the portion
thereof, if any,
that is to be satisfied by delivering and crediting Securities
of that series
pursuant to Section 3.05 and the basis for such credit and will,
together with
such Officers' Certificate, deliver to the Trustee any
Securities to be so
delivered. Not less than 30 days before each such sinking fund
payment date the
Trustee shall select the Securities to be redeemed upon such
sinking fund
payment date in the manner specified in Section 3.02 and cause
notice of the
redemption thereof to be given in the name of and at the expense
of the Company
in the manner provided in Section 3.02. Such notice having been
duly given, the
redemption of such Securities shall be made upon the terms and
in the manner
stated in Section 3.03.
ARTICLE IV
COVENANTS
Section 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid the
principal
of (and premium, if any) and interest on the Securities of that
series at the
time and place and in the manner provided herein and established
with respect to
such Securities.
Section 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the
Company
agrees to maintain an office or agency in the Borough of
Manhattan, the City and
State of New York, with respect to each such series and at such
other location
or locations as may be designated as provided in this Section
4.02, where (i)
Securities of that series may be presented for payment, (ii)
Securities of that
series may be presented as herein above authorized for
registration of transfer
and exchange, and (iii) notices and demands to or upon the
Company in respect of
the Securities of that series and this Indenture may be given or
served, such
designation to continue with respect to such office or agency
until the Company
shall, by written notice signed by its President or a Vice
President and
delivered to the trustee, designate some other office or agency
for such
purposes or any of them. If at any time the Company shall fail
to maintain any
such required office or agency or shall fail to furnish the
Trustee with the
address thereof, such presentations, notices and demands may be
made or served
at the Corporate Trust Office of the Trustee, and the Company
hereby appoints
the Trustee as its agent to receive all such presentations,
notices and demands.
Section 4.03 Paying Agents.
(a) If the Company shall appoint one or more paying agents for
all or any
series of the Securities, other than the Trustee, the Company
will cause each
such paying agent to execute and deliver to the Trustee an
instrument in which
such agent shall agree with the Trustee, subject to the
provisions of this
Section:
18
<PAGE>
(1) that it will hold all sums held by it as such agent for
the
payment of the principal of (and premium, if any) or interest on
the Securities
of that series (whether such sums have been paid to it by the
Company or by any
other obligor of such Securities) in trust for the benefit of
the Persons
entitled thereto;
(2) that it will give the Trustee notice of any failure by the
Company
(or by any other obligor of such Securities) to make any payment
of the
principal of (and premium, if any) or interest on the Securities
of that series
when the same shall be due and payable;
(3) that it will, at any time during the continuance of any
failure
referred to in the preceding paragraph (a)(2) above, upon the
written request of
the Trustee, forthwith pay to the Trustee all sums so held in
trust by such
paying agent; and
(4) that it will perform all other duties of paying agent as set
forth
in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any
series of the Securities, it will on or before each due date of
the principal of
(and premium, if any) or interest on Securities of that series,
set aside,
segregate and hold in trust for the benefit of the Persons
entitled thereto a
sum sufficient to pay such principal (and premium, if any) or
interest so
becoming due on Securities of that series until such sums shall
be paid to such
Persons or otherwise disposed of as herein provided and will
promptly notify the
Trustee of such action, or any failure (by it or any other
obligor on such
Securities) to take such action. Whenever the Company shall have
one or more
paying agents for any series of Securities, it will, prior to
each due date of
the principal of (and premium, if any) or interest on any
Securities of that
series, deposit with the paying agent a sum sufficient to pay
the principal (an
premium, if any) or interest so becoming due, such sum to be
held in trust for
the benefit of the Persons entitled to such principal, premium
or interest, and
(unless such paying agent is the Trustee) the Company will
promptly notify the
Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary,
(i) the
agreement to hold sums in trust as provided in this Section is
subject to the
provisions of Section 11.05, and (ii) the Company may at any
time, for the
purpose of obtaining the satisfaction and discharge of this
Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the
Trustee all sums
held in trust by the Company or such paying agent, such sums to
be held by the
Trustee upon the same terms and conditions as those upon which
such sums were
held by the Company or such paying agent; and, upon such payment
by any paying
agent to the Trustee, such paying agent shall be released
fro
| 
