ens_s-3a.htm
As
filed with the Securities and Exchange Commission on November 21,
2007
Registration
No. 333-147029
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
AMENDMENT
NO. 1 TO FORM S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
ENERSYS
(Exact
name of Registrant as specified in its charter)
DELAWARE
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3691
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23-3058564
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(State
or other jurisdiction of incorporation or organization)
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(Primary
Standard Industrial Classification Code Number)
|
(I.R.S.
Employer Identification No.)
|
2366
Bernville Road
Reading,
Pennsylvania 19605
(610)
208-1991
(Address,
Including Zip Code, and Telephone Number, Including Area Code,
of
Registrant's Principal Executive Offices)
Frank
M. Macerato
Vice
President and General Counsel
EnerSys
2366
Bernville Road
Reading,
PA 19605
(610)
208-1991
(Name,
Address, Including Zip Code, and Telephone Number,
Including
Area Code, of Agent for Service)
Copy
to:
Stacy
J. Kanter, Esq.
Skadden,
Arps, Slate, Meagher & Flom LLP
Four
Times Square
New
York, New York 10036-6522
(212)
735-3000
|
Approximate
date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement as
determined by the registrant
If
the only securities being registered on this Form are being offered pursuant
to
dividend or interest reinvestment plans, check the following box. o
If
any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If
this Form is filed to register additional securities for an offering pursuant
to
Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If
delivery of the prospectus is
expected to be made pursuant to Rule 434, please check the following
box.o
If
this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto
that
shall become effective upon filing with the Commission pursuant to Rule 462(e)
under the Securities Act, check the following box.o
If
this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction
I.D.
filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following
box.o
The
Registrant hereby amends this Registration Statement on such date or dates
as
may be necessary to delay its effective date until the Registrant shall file
a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
EnerSys
is filing this Amendment No. 1 to the Registration Statement on Form S-3 (File
No. 333-147029) solely for the purpose of filing certain Exhibits thereto as
indicated on the exhibit list, and no changes or additions are being made hereby
to the prospectus that forms a part of the Registration Statement. Accordingly,
the prospectus is being omitted from this filing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of
Issuance and Distribution.
The
following table sets forth the costs and expenses payable by us in connection
with the securities being registered, other than underwriting discounts and
commissions in connection with any offering of the securities. Underwriting
discounts and commissions in connection with the offering of common stock by
the
selling stockholders will be payable by the selling stockholders in all
cases. The selling stockholders will not bear any portion of the
below expenses. All the amounts shown are estimates, except the
Securities and Exchange Commission registration fee.
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Securities
and Exchange Commission Registration Fee
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$ 14,343
|
|
|
Transfer
Agents Fees and Expenses
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5,000
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Printing
and Engraving Fees and Expenses
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150,000
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Accounting
Fees and Expenses
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200,000
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Legal
Fees
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500,000
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Miscellaneous
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100,000
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Total
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$ 969,343
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Item
15. Indemnification of
Directors and Officers.
Section
145 of the Delaware General Corporation Law generally provides that all
directors and officers (as well as other employees and individuals) may be
indemnified against expenses (including attorneys' fees), judgments, fines
and
amounts paid in settlement actually and reasonably incurred in connection with
certain specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the
corporation—a "derivative action"), if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar
standard of care is applicable in the case of derivative actions, except that
indemnification extends only to expenses (including attorneys' fees) actually
and reasonably incurred in connection with defense or settlement of an action
and the Delaware General Corporation Law requires court approval before there
can be any indemnification where the person seeking indemnification has been
found liable to the corporation. Section 145 of the Delaware General
Corporation Law also provides that the rights conferred thereby are not
exclusive of any other right which any person may be entitled to under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
and permits a corporation to advance expenses to or on behalf of a person to
be
indemnified upon receipt of an undertaking to repay the amounts advanced if
it
is determined that the person is not entitled to be indemnified.
We
have included in our certificate of incorporation and bylaws provisions to
(a)
eliminate the personal liability of our directors for monetary damages resulting
from breaches of their fiduciary duty (provided that such provision does not
eliminate liability for breaches of the duty of loyalty, acts or omissions
not
in good faith or which involve intentional misconduct or a knowing violation
of
law, violations under Section 174 of the Delaware General Corporation Law or
for
any transaction from which the director derived an improper personal benefit)
and (b) indemnify our directors and officers to the fullest
extent permitted by Section 145 of the Delaware General Corporation Law,
including circumstances in which indemnification is otherwise
discretionary.
Acting
pursuant to the provisions of our certificate of incorporation and bylaws and
the provisions of Section 145 of the Delaware General Corporation Law, we have
entered into agreements with each of our officers and directors to indemnify
them to the fullest extent permitted by such provisions and such
law. We are also expressly authorized to carry directors' and
officers' insurance providing indemnification for our directors, officers and
certain employees for some liabilities. We believe that these
indemnification provisions and insurance are useful to attract and retain
qualified directors and executive officers.
Item
16. List of
Exhibits.
The
Exhibits to this registration statement are listed in the Index to Exhibits
on
page II-7.
Item
17. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the
effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided,
however, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the
registration statement is on Form S-3 or Form F-3 and the information required
to be included in a post-effective amendment by those paragraphs is contained
in
reports filed with or furnished to the Commission by the registrant pursuant
to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended,
that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part
of
the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating
to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to
any
purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed
to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement
as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter,
such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall
be
deemed to be the initial bona fide offering thereof. Provided, however, that
no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of
the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made
in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5) The
undersigned registrant undertakes that in a primary offering of securities
of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if
the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf
of
the undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The
undersigned
registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrant's annual report,
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as
amended, (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934,
as amended) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) The
undersigned
registrant hereby undertakes that:
1.
For purposes of determining any liability under the Securities Act of 1933,
the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
2.
For the purpose of determining any liability under the Securities Act of 1933,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(d) The
undersigned
registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act ("Act") in accordance with the rules
and
regulations prescribed by the Commission under Section 305(b)(2) of the
Act.
Insofar
as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of each Registrant pursuant to
the
foregoing provisions, or otherwise, each Registrant has been advised that in
the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by a Registrant of expenses incurred
or
paid by a director, officer or controlling person of a Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, that Registrant will, unless in the opinion of its counsel the
claim
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-3 and has duly caused this Amendment No. 1 to the Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Reading, Commonwealth of Pennsylvania, on
November 21, 2007.
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ENERSYS
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By:
/s/ JOHN D. CRAIG
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Name:
John D. Craig
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Title:
Chairman, President, Chief Executive Officer and Director
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Pursuant
to the requirements of the Securities Act of 1933, this Amendment No. 1 to
the
Registration Statement has been signed by the following persons in the
capacities indicated on November 21, 2007.
Signature
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Title
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/s/ JOHN
D.
CRAIG
John
D. Craig
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Chairman,
President, Chief Executive Officer and
Director
(Principal Executive Officer)
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/s/ MICHAEL
T.
PHILION
Michael
T. Philion
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Executive
Vice President—Finance and Chief
Financial
Officer (Principal Financial Officer)
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/s/ MICHAEL
J.
SCHMIDTLEIN
Michael
J. Schmidtlein
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Vice
President and Corporate Controller (Principal
Accounting
Officer)
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*
Hwan-yoon
Chung
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Director
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*
Kenneth
F. Clifford
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Director
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*
Howard
I. Hoffen
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Director
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*
Michael
C. Hoffman
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Director
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*
Arthur
T. Katsaros
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Director
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*
John
F. Lehman
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Director
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*
Raymond
E. Mabus, Jr.
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Director
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*
Dennis
S. Marlo
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Director
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* |
Richard
W. Zuidema, by signing his name hereto, does hereby sign
this Amendment No. 1 to theRegistration Statement on behalf of the
directors of the registrant above whose name asterisksappear, pursuant
to
powers of attorney duly executed by such directors and filed with
the
SEC.
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By:
/s/ RICHARD W.
ZUIDEMA
Richard
W. Zuidema
Attorney-in-fact
EXHIBIT
INDEX
Exhibit
No.
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Description
of Exhibits
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1.1
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Form
of Underwriting Agreement (to be filed as an exhibit to a Current
Report
on Form 8-K or other applicable periodic report of EnerSys to be
incorporated by reference herein, if applicable).
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3.1
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Fifth
Restated Certificate of Incorporation (incorporated by reference
to
Exhibit 3.1 to Amendment No. 3 to EnerSys’ Registration Statement on Form
S-1 (File No. 333-115553) filed on July 13, 2004).
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3.2
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Bylaws
(incorporated by reference to Exhibit 3.2 to Amendment No. 3 to EnerSys’
Registration Statement on Form S-1 (File No. 333-115553) filed on
July 13,
2004).
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4.1
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2004
Securityholder Agreement (incorporated by reference to Exhibit 4.2
to
Amendment No. 4 to EnerSys’ Registration Statement on Form S-1 (File No.
333-115553) filed on July 26, 2004).
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4.2
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Form
of Indenture (filed herewith).
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4.3
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Form
of Debt Securities (to be filed as an exhibit to a Current Report
on Form
8-K or other applicable periodic report of EnerSys to be incorporated
by
reference herein, if applicable).
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5.1
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Opinion
of Skadden, Arps, Slate, Meagher & Flom LLP (filed
herewith).
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12.1
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Statement
of Computation of Ratios of Earnings to Fixed Charges (previously
filed).
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23.1
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Consent
of Ernst & Young LLP, Independent Registered Public Accounting Firm
(previously filed).
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23.2
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Consent
of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit
5.1).
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24.1
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Power
of Attorney of certain officers and directors of the Company (incorporated
by reference to Exhibit 24.1 to EnerSys’ Registration Statement on Form
S-3 (File No. 333-147029) filed on October 30, 2007).
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25.1
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Form
T-1 Statement of Eligibility under the Trust Indenture (filed
herewith).
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II-7
ens_exh4-2.htm
Exhibit
4.2
ENERSYS
----------
INDENTURE
Dated
as of
_________
__, ____
----------
DEBT
SECURITIES
_____________________
WILMINGTON
TRUST COMPANY
Trustee
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TABLE
OF CONTENTS*
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PAGE
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ARTICLE
I
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DEFINITIONS
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Section
1.01
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Definitions.
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1
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ARTICLE
II
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FORMS
OF SECURITIES
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Section
2.01
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Terms
of the Securities
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11
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Section
2.02
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Form
of Trustee’s Certificate of Authentication
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11
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Section
2.03
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Form
of Trustee’s Certificate of Authentication by an Authenticating
Agent
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12
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ARTICLE
III
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THE
DEBT SECURITIES
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Section
3.01
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Amount
Unlimited; Issuable in Series
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13
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Section
3.02
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Denominations
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15
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Section
3.03
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Execution,
Authentication, Delivery and Dating
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15
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Section
3.04
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Temporary
Securities
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17
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Section
3.05
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Registrar
and Paying Agent
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18
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Section
3.06
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Transfer
and Exchange
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18
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Section
3.07
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Mutilated,
Destroyed, Lost and Stolen Securities
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22
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Section
3.08
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Payment
of Interest; Interest Rights Preserved
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23
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Section
3.09
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Cancellation
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24
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Section
3.10
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Computation
of Interest
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24
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Section
3.11
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Currency
of Payments in Respect of Securities
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25
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Section
3.12
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Judgments
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25
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Section
3.13
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CUSIP
Numbers
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26
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ARTICLE
IV
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REDEMPTION
OF SECURITIES
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Section
4.01
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Applicability
of Right of Redemption
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26
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*
The Table of Contents is not a part of the
Indenture.
Section
4.02
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Selection
of Securities to be Redeemed
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26
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Section
4.03
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Notice
of Redemption
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27
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Section
4.04
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Deposit
of Redemption Price
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27
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Section
4.05
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Securities
Payable on Redemption Date
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27
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Section
4.06
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Securities
Redeemed in Part
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28
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ARTICLE
V
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SINKING
FUNDS
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Section
5.01
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Applicability
of Sinking Fund
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28
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Section
5.02
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Mandatory
Sinking Fund Obligation
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28
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Section
5.03
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Optional
Redemption at Sinking Fund Redemption Price
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29
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Section
5.04
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Application
of Sinking Fund Payment
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29
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ARTICLE
VI
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PARTICULAR
COVENANTS OF THE COMPANY
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Section
6.01
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Payments
of Securities
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30
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Section
6.02
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Paying
Agent
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30
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Section
6.03
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To
Hold Payment in Trust
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31
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Section
6.04
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Merger,
Consolidation and Sale of Assets
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32
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Section
6.05
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Compliance
Certificate
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33
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Section
6.06
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Conditional
Waiver by Holders of Securities
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33
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Section
6.07
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Statement
by Officers as to Default
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34
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ARTICLE
VII
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REMEDIES
OF TRUSTEE AND SECURITYHOLDERS
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Section
7.01
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Events
of Default
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34
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Section
7.02
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Acceleration;
Recission and Annulment
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35
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Section
7.03
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Other
Remedies
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37
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Section
7.04
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Trustee
as Attorney-in-Fact
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38
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Section
7.05
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Priorities
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38
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Section
7.06
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Control
by Securityholders; Waiver of Past Defaults
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39
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Section
7.07
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Limitation
on Suits
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39
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Section
7.08
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Undertaking
for Costs
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40
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Section
7.09
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Remedies
Cumulative
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40
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ARTICLE
VIII
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CONCERNING
THE SECURITYHOLDERS
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Section
8.01
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Evidence
of Action of Securityholders
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41
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Section
8.02
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Proof
of Execution or Holding of Securities
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41
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Section
8.03
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Persons
Deemed Owners
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42
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Section
8.04
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Effect
of Consents
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42
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ARTICLE
IX
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SECURITYHOLDERS’
MEETINGS
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Section
9.01
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Purposes
of Meetings
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42
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Section
9.02
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Call
of Meetings by Trustee
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43
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Section
9.03
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Call
of Meetings by Company or Securityholders
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43
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Section
9.04
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Qualifications
for Voting
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43
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Section
9.05
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Regulation
of Meetings
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43
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Section
9.06
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Voting
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44
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Section
9.07
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No
Delay of Rights by Meeting
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44
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ARTICLE
X
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REPORTS
BY THE COMPANY AND THE TRUSTEE AND
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SECURITYHOLDERS’
LISTS
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Section
10.01
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Reports
by Trustee
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45
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Section
10.02
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Reports
by the Company
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45
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Section
10.03
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Securityholders’
Lists
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45
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ARTICLE
XI
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CONCERNING
THE TRUSTEE
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Section
11.01
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Rights
of Trustees; Compensation and Indemnity
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46
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Section
11.02
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Duties
of Trustee
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48
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Section
11.03
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Notice
of Defaults
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50
|
Section
11.04
|
Eligibility;
Disqualification
|
50
|
Section
11.05
|
Registration
and Notice; Removal
|
50
|
Section
11.06
|
Successor
Trustee by Appointment
|
51
|
Section
11.07
|
Successor
Trustee by Merger
|
53
|
Section
11.08
|
Right
to Rely on Officer’s Certificate
|
53
|
Section
11.09
|
Appointment
of Authenticating Agent
|
53
|
Section
11.10
|
Communications
by Securityholders with Other Securityholders
|
54
|
|
|
|
ARTICLE
XII
|
|
|
|
SATISFACTION
AND DISCHARGE; DEFEASANCE
|
|
|
|
Section
12.01
|
Applicability
of Article
|
54
|
Section
12.02
|
Satisfaction
and Discharge of Indenture
|
55
|
Section
12.03
|
Defeasance
upon Deposit of Moneys or U.S Government Obligations
|
56
|
Section
12.04
|
Repayment
to Company
|
57
|
Section
12.05
|
Indemnity
for U.S. Government Obligations
|
57
|
Section
12.06
|
Deposits
to Be Held in Escrow
|
57
|
Section
12.07
|
Application
of Trust Money
|
58
|
Section
12.08
|
Deposits
of Non-U.S. Currencies
|
58
|
|
|
|
ARTICLE
XIII
|
|
|
|
IMMUNITY
OF CERTAIN PERSONS
|
|
|
|
Section
13.01
|
No
Personal Liability
|
59
|
|
|
|
ARTICLE
XIV
|
|
|
|
SUPPLEMENTAL
INDENTURES
|
|
|
|
Section
14.01
|
Without
Consent of Securityholders
|
59
|
Section
14.02
|
With
Consent of Securityholders; Limitations
|
61
|
Section
14.03
|
Trustee
Protected
|
62
|
Section
14.04
|
Effect
of Execution of Supplemental Indenture
|
62
|
Section
14.05
|
Notation
on or Exchange of Securities
|
63
|
Section
14.06
|
Conformity
with TIA
|
63
|
|
|
|
ARTICLE
XV
|
|
|
|
SUBORDINATION
OF SECURITIES
|
|
|
|
Section
15.01
|
Agreement
to Subordinate
|
63
|
Section
15.02
|
Distribution
on Dissolution, Liquidation and Reorganization; Subrogation of
Securities
|
63
|
Section
15.03
|
No
Payment on Securities in Event of Default on Senior
Indebtedness
|
65
|
Section
15.04
|
Payments
on Securities Permitted
|
65
|
Section
15.05
|
Authorization
of Securityholders to Trustee to Effect Subordination
|
66
|
Section
15.06
|
Notices
to Trustee
|
66
|
Section
15.07
|
Trustee
as Holder of Senior Indebtedness
|
66
|
Section
15.08
|
Modifications
of Terms of Senior Indebtedness
|
67
|
Section
15.09
|
Reliance
on Judicial Order or Certificate of Liquidating Agent
|
67
|
Section
15.10
|
Satisfaction
and Discharge; Defeasance and Covenant Defeasance
|
67
|
Section
15.11
|
Trustee
Not Fiduciary for Holders of Senior Indebtedness
|
67
|
|
|
|
ARTICLE
XVI
|
|
|
|
MISCELLANEOUS
PROVISIONS
|
|
|
|
Section
16.01
|
Certificates
and Opinions as to Conditions Precedent
|
68
|
Section
16.02
|
Trust
Indenture Act Controls
|
69
|
Section
16.03
|
Notices
to the Company and Trustee
|
69
|
Section
16.04
|
Notices
to Securityholders; Waiver
|
69
|
Section
16.05
|
Legal
Holiday
|
70
|
Section
16.06
|
Effects
of Headings and Table of Contents
|
70
|
Section
16.07
|
Successors
and Assigns
|
70
|
Section
16.08
|
Separability
Clause
|
70
|
Section
16.09
|
Benefits
of Indenture
|
70
|
Section
16.10
|
Counterparts
Originals
|
70
|
Section
16.11
|
Governing
Law; Waiver of Trial by Jury
|
70
|
INDENTURE
dated as of _________ __, ____, among EnerSys, a Delaware corporation (the
“Company”), and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
trustee (the “Trustee”).
WITNESSETH:
WHEREAS,
the Company has duly authorized the execution and delivery of this Indenture
to
provide for the issuance of unsecured debentures, notes, bonds or other
evidences of indebtedness (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; and
WHEREAS,
all things necessary to make this Indenture a valid agreement of the Company,
in
accordance with its terms, have been done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
That,
in consideration of the premises and the purchase of the Securities by the
Holders thereof for the equal and proportionate benefit of all of the present
and future Holders of the Securities, each party agrees and covenants as
follows:
ARTICLE
I
DEFINITIONS
For
all purposes of this Indenture, except as otherwise expressly provided or unless
the context otherwise requires:
(a) the
terms defined in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular;
(b) all
terms used herein without definition which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them
therein; and
(c) the
words “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.
(d) References
to “Article” or “Section” or other subdivision herein are references to an
Article, Section or other subdivision of the Indenture, unless the context
otherwise requires.
Section
1.01 Definitions.
(a) Unless
otherwise defined in this Indenture or the context otherwise requires, all
terms
used herein shall have the meanings assigned to them in the Trust Indenture
Act.
(b) Unless
the context otherwise requires, the terms defined in this Section 1.01(b) shall
for all purposes of this Indenture have the meanings hereinafter set forth,
the
following
definitions to be equally applicable to both the singular and the plural forms
of any of the terms herein defined:
Affiliate:
The
term “Affiliate,” with respect to any specified Person shall mean any other
Person directly or indirectly controlling or controlled by or under direct
or
indirect common control with such specified Person. For the purposes
of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Authenticating
Agent:
The
term “Authenticating Agent” shall have the meaning assigned to it in Section
11.09.
Board
of Directors:
The
term “Board of Directors” shall mean either the board of directors of the
Company or the executive or any other committee of that board duly
authorized to act in respect hereof.
Board
Resolution:
The
term “Board Resolution” shall mean a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have
been
duly adopted by the Board of Directors (or by a committee of the Board of
Directors to the extent that any such other committee has been authorized by
the
Board of Directors to establish or approve the matters contemplated) and to
be
in full force and effect on the date of such certification and delivered to
the
Trustee.
Business
Day:
The
term “Business Day,” when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on
which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
Capital
Stock:
The
term “Capital Stock” shall mean:
(a) in
the case of a corporation, corporate stock;
(b) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;
(c) in
the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and
(d) 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, but excluding from all of the foregoing any debt securities convertible
into Capital Stock, whether or not such debt securities include any right of
participation with Capital Stock.
Code:
The
term “Code” shall mean the Internal Revenue Code of 1986 as in effect on the
date hereof.
Company:
The
term “Company” shall mean the Person named as the “Company” in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
“Company” shall mean such successor Person.
Company
Order:
The
term “Company Order” shall mean a written order signed in the name of the
Company by the Chairman, President, Executive Vice President, Senior Vice
President, Treasurer, Assistant Treasurer, Controller, Assistant Controller,
Secretary or Assistant Secretary of the Company, and delivered to the
Trustee.
Corporate
Trust Office:
The
term “Corporate Trust Office,” or other similar term, shall mean the principal
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located
at,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890,
Attention: Corporate Trust Administration, or such other address as the Trustee
may designate from time to time by notice to the Holders and the Company, or
the
principal corporate trust officer of any successor Trustee (or such other
address as such successor Trustee may designate from time to time by notice
to
the Holders and the Company).
Currency:
The
term “Currency” shall mean U.S. Dollars or Foreign Currency.
Default:
The
term “Default” shall have the meaning assigned to it in Section
11.03.
Defaulted
Interest:
The
term “Defaulted Interest” shall have the same meaning assigned to it in Section
3.08(b).
Depositary:
The
term “Depositary” shall mean, with respect to the Securities of any series
issuable in whole or in part in the form of one or more Global Securities,
the
Person designated as Depositary by the Company pursuant to Section 3.01 until
a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Depositary” shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is
more
than one such Person, “Depositary” as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
Designated
Currency:
The
term “Designated Currency” shall have the same meaning assigned to it in Section
3.12.
Discharged:
The
term “Discharged” shall have the meaning assigned to it in Section
12.03.
Event
of Default:
The
term “Event of Default” shall have the meaning specified in Section
7.01.
Exchange
Act:
The
term “Exchange Act” shall mean the Securities Exchange Act of 1934, as
amended.
Exchange
Rate:
The
term “Exchange Rate” shall have the meaning assigned to it in Section
7.01.
Floating
Rate Security:
The
term “Floating Rate Security” shall mean a Security that provides for the
payment of interest at a variable rate determined periodically by reference
to
an interest rate index specified pursuant to Section 3.01.
Foreign
Currency:
The
term “Foreign Currency” shall mean a currency issued by the government of any
country other than the United States or a composite currency, the value of
which
is determined by reference to the values of the currencies of any group of
countries.
GAAP:
The
term “GAAP,” with respect to any computation required or permitted hereunder,
shall mean generally accepted accounting principles in effect in the United
States as in effect from time to time, including, without limitation, those
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 approved by a significant segment of the
accounting profession.
Global
Security:
The
term “Global Security” shall mean any Security that evidences all or part of a
series of Securities, issued in fully-registered certificated form to the
Depositary for such series in accordance with Section 3.03 and bearing the
legend prescribed in Section 3.03(g).
Holder;
Holder of Securities:
The
terms “Holder” and “Holder of Securities” are defined under “Securityholder;
Holder of Securities; Holder.”
Indebtedness:
The
term “Indebtedness” shall mean any and all obligations of a Person for money
borrowed which, in accordance with GAAP, would be reflected on the balance
sheet
of such Person as a liability on the date as of which Indebtedness is to be
determined.
Indenture:
The
term “Indenture” or “this Indenture” shall mean this instrument and all
indentures supplemental hereto.
Interest:
The
term “interest” shall mean, with respect to an Original Issue Discount Security
that by its terms bears interest only after Maturity, interest payable after
Maturity.
Interest
Payment Date:
The
term “Interest Payment Date” shall mean, with respect to any Security, the
Stated Maturity of an installment of interest on such Security.
Mandatory
Sinking Fund Payment:
The
term “Mandatory Sinking Fund Payment” shall have the meaning assigned to it in
Section 5.01.
Maturity:
The
term “Maturity,” with respect to any Security, shall mean the date on which the
principal of such Security shall become due and payable as therein and herein
provided, whether by declaration, call for redemption or otherwise.
Members:
The
term “Members” shall have the meaning assigned to it in Section
3.03(i).
Officer’s
Certificate:
The
term “Officer’s Certificate” shall mean a certificate signed by any of the
Chairman of the Board of Directors, the President or a Vice President,
Treasurer, an Assistant Treasurer, the Controller, the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 16.01 if and
to
the extent required by the provisions of such Section.
Opinion
of Counsel:
The
term “Opinion of Counsel” shall mean an opinion in writing signed by legal
counsel, who may be an employee of or of counsel to the Company, or may be
other
counsel reasonably satisfactory to the Trustee that meets the requirements
provided for in Section 16.01.
Optional
Sinking Fund Payment:
The
term “Optional Sinking Fund Payment” shall have the meaning assigned to it in
Section 5.01.
Original
Issue Discount Security:
The
term “Original Issue Discount Security” shall mean any Security that is issued
with “original issue discount” within the meaning of Section 1273(a) of the Code
and the regulations thereunder and any other Security designated by the Company
as issued with original issue discount for United States federal income tax
purposes.
Outstanding:
The
term “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;
(b) Securities
or portions thereof for which payment or redemption 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 or Securities as to
which
the Company’s obligations have been Discharged; provided, however, that if such
Securities or portions thereof 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
(c) Securities
that have been paid pursuant to Section 3.07(b) 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 a Responsible Officer of the Trustee proof satisfactory to
it
that such Securities are held by a protected 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 Securities of a series Outstanding have performed any action
hereunder, Securities owned by the Company or any other obligor upon the
Securities of such series or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that,
in
determining whether the Trustee shall be protected in relying upon any such
action, only Securities of such series that a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so
owned that 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 to
act with respect to such Securities and that the pledgee is not the Company
or
any other obligor upon such Securities or any Affiliate of the Company or of
such other obligor. In determining whether the Holders of the
requisite principal amount of Outstanding Securities of a series have performed
any action hereunder, the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding for such purpose shall be the
amount of the principal thereof that would be due and payable as of the date
of
such determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 7.02 and the principal amount of a Security denominated
in a
Foreign Currency that shall be deemed to be Outstanding for such purpose shall
be the amount calculated pursuant to Section 3.11(b).
Paying
Agent:
The
term “Paying Agent” shall have the meaning assigned to it in Section
6.02(a).
Person:
The
term “Person” shall mean an individual, a corporation, a limited liability
company, a partnership, an association, a joint stock company, a trust, an
unincorporated organization or a government or an agency or political
subdivision thereof.
Place
of Payment:
The
term “Place of Payment” shall mean, when used with respect to the Securities of
any series, the place or places where the principal of and premium, if any,
and
interest on the Securities of that series are payable as specified pursuant
to
Section 3.01.
Predecessor
Security:
The
term “Predecessor Security” shall mean, with respect to any Security, 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 3.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
Record
Date:
The
term “Record Date” shall mean, with respect to any interest payable on any
Security on any Interest Payment Date, the close of business on any date
specified in such Security for the payment of interest pursuant to Section
3.01.
Redemption
Date:
The
term “Redemption Date” shall mean, when used with respect to any Security to be
redeemed, in whole or in part, the date fixed for such redemption by or pursuant
to this Indenture and the terms of such Security, which, in the case of a
Floating Rate Security, unless otherwise specified pursuant to Section 3.01,
shall be an Interest Payment Date only.
Redemption
Price:
The
term “Redemption Price,” when used with respect to any Security to be redeemed,
in whole or in part, shall mean the price at which it is to be redeemed pursuant
to the terms of the Security and this Indenture.
Register:
The
term “Register” shall have the meaning assigned to it in Section
3.05(a).
Registrar:
The
term “Registrar” shall have the meaning assigned to it in Section
3.05(a).
Responsible
Officers:
The
term “Responsible Officers” of the Trustee hereunder shall mean any vice
president, any assistant vice president, any trust officer, any assistant trust
officer or any other officer associated with the corporate trust department
of
the Trustee customarily performing functions similar to those performed by
any
of the above designated officers, and also means, with respect to a particular
corporate trust matter, any other officer of the Trustee to whom such matter
is
referred because of such person’s knowledge of and familiarity with the
particular subject.
SEC:
The
term “SEC” shall mean the U.S. Securities and Exchange Commission, as
constituted from time to time.
Securities
Act:
The
term “Securities Act” shall mean the Securities Act of 1933, as
amended.
Security:
The
term “Security” or “Securities” shall have the meaning stated in the recitals
and shall more particularly mean one or more of the Securities duly
authenticated by the Trustee and delivered pursuant to the provisions of this
Indenture.
Security
Custodian:
The
term “Security Custodian” shall mean the custodian with respect to any Global
Security appointed by the Depositary, or any successor Person thereto, and
shall
initially be the Paying Agent.
Securityholder;
Holder of Securities; Holder:
The
term “Securityholder” or “Holder of Securities” or “Holder,” shall mean the
Person in whose name Securities shall be registered in the Register kept for
that purpose hereunder.
Senior
Indebtedness:
The
term “Senior Indebtedness” means the principal of (and premium, if any) and
unpaid interest on (x) Indebtedness of the Company, whether outstanding on
the
date hereof or thereafter created, incurred, assumed or guaranteed, for money
borrowed other than (a) any Indebtedness of the Company which when incurred,
and
without respect to any election under Section 1111(b) of the Federal Bankruptcy
Code, was without recourse to the Company, (b) any Indebtedness of the Company
to any of its Subsidiaries, (c) Indebtedness to any employee of the Company,
(d)
any liability for taxes, (e) Trade Payables and (f) any Indebtedness of the
Company which is expressly subordinate in right of payment to any other
Indebtedness of the Company, and (y) renewals, extensions, modifications and
refundings of any such Indebtedness. For purposes of the foregoing
and the definition of “Senior Indebtedness,” the phrase “subordinated in right
of payment” means debt subordination only and not lien subordination, and
accordingly, (i) unsecured indebtedness shall not be deemed to be subordinated
in right of payment to secured indebtedness merely by virtue of the fact that
it
is unsecured, and (ii) junior liens, second liens and other contractual
arrangements that provide for priorities among Holders of the same or different
issues of indebtedness with respect to any collateral or the proceeds of
collateral shall not constitute subordination in right of payment. This
definition may be modified or superseded by a supplemental
indenture.
Special
Record Date:
The
term “Special Record Date” shall have the meaning assigned to it in Section
3.08(b)(i).
Stated
Maturity:
The
term “Stated Maturity” when used with respect to any Security or any installment
of interest thereon, shall mean the date specified in such Security as the
fixed
date on which the principal (or any portion thereof) of or premium, if any,
on
such Security or such installment of interest is due and payable.
Subsidiary:
The
term “Subsidiary,” when used with respect to any Person, shall
mean:
i) any
corporation, limited liability company, 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 and after giving
effect to any voting agreement or stockholders’ agreement that effectively
transfers voting power) to vote in the election of directors, managers or
trustees of the corporation, association or other business entity is at the
time
owned or controlled, directly or indirectly, by that Person or one or more
of
the other Subsidiaries of that Person (or a combination thereof);
and
(b) any
partnership (i) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (ii) the only general
partners of which are that Person or one or more Subsidiaries of that Person
(or
any combination thereof).
Successor
Company:
The
term “Successor Company” shall have the meaning assigned to it in Section
3.06(i).
Trade
Payables:
The
term “Trade Payables” means accounts payable or any other Indebtedness or
monetary obligations to trade creditors created or assumed by the Company or
any
Subsidiary of the Company in the ordinary course of business (including
guarantees thereof or instruments evidencing such liabilities).
Trust
Indenture Act; TIA:
The
term “Trust Indenture Act” or “TIA” shall mean the Trust Indenture Act of 1939,
as amended.
Trustee:
The
term “Trustee” shall mean the Person named as the “Trustee” in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Securities 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.
U.S.
Dollars:
The
term “U.S. Dollars” shall mean such currency of the United States as at the time
of payment shall be legal tender for the payment of public and private
debts.
U.S.
Government Obligations:
The
term “U.S. Government Obligations” shall mean (i) direct non-callable
obligations of, or guaranteed by, the United States or (ii) obligations of
a
Person controlled or supervised by and acting as an agency or instrumentality
of
the United States, in either case, for the payment of which guarantee or
obligation the full faith and credit of the United States is
pledged.
United
States:
The
term “United States” shall mean the United States of America (including the
States and the District of Columbia), its territories and its possessions and
other areas subject to its jurisdiction.
ARTICLE
II
FORMS
OF SECURITIES
Section
2.01 Terms
of the Securities.
(a) The
Securities of each series shall be substantially in the form set forth in a
Company Order or in one or more indentures supplemental hereto, and shall have
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 or designation and such legends or endorsements
placed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Indenture, or as may be required to comply with
any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which any series of the Securities
may
be listed or of any automated quotation system on which any such series may
be
quoted, or to conform to usage, all as determined by the officers executing
such
Securities as conclusively evidenced by their execution of such
Securities. The Company shall furnish any such legends or
endorsements to the Trustee.
(b) The
terms and provisions of the Securities shall constitute, and are hereby
expressly made, a part of this Indenture, and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture
expressly agree to such terms and provisions and to be bound
thereby.
Section
2.02 Form
of Trustee’s Certificate of Authentication.
(a) Only
such of the Securities as shall bear thereon a certificate substantially in
the
form of the Trustee’s certificate of authentication hereinafter recited,
executed by the Trustee by manual signature, shall be valid or become obligatory
for any purpose or entitle the Holder thereof to any right or benefit under
this
Indenture.
(b) Each
Security shall be dated the date of its authentication, except that any Global
Security shall be dated as of the date specified as contemplated in Section
3.01.
(c) The
form of the Trustee’s certificate of authentication to be borne by the
Securities shall be substantially as follows:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Date
of authentication:
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WILMINGTON
TRUST COMPANY, as
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Trustee
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By:
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Authorized
Signatory
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Section
2.03 Form
of Trustee’s Certificate of Authentication by an Authenticating
Agent. If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Trustee’s
Certificate of Authentication by such Authenticating Agent to be borne by
Securities of each such series shall be substantially as follows:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Date
of authentication:
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WILMINGTON
TRUST COMPANY, as
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Trustee
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By:
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[NAME
OF AUTHENTICATING AGENT]
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as
Authenticating Agent
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By:
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Authorized
Signatory
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ARTICLE
III
THE
DEBT SECURITIES
Section
3.01 Amount
Unlimited; Issuable in Series. 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. There shall be set forth in a Company Order or in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series:
(a) the
title of the Securities of the series (which shall distinguish the Securities
of
such series from the Securities of all other series, except to the extent that
additional Securities of an existing series are being issued);
(b) any
limit upon the aggregate principal amount of the Securities of the series that
may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon transfer of, or in exchange for, or in lieu
of,
other Securities of such series pursuant to Section 3.04, 3.06, 3.07, 4.06,
or
14.05);
(c) the
dates on which or periods during which the Securities of the series may be
issued, and the dates on, or the range of dates within, which the principal
of
and premium, if any, on the Securities of such series are or may be payable
or
the method by which such date or dates shall be determined or
extended;
(d) the
rate or rates 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, or the method by which such date or
dates
shall be determined, the Interest Payment Dates on which any such interest
shall
be payable, and the Record Dates for the determination of Holders to whom
interest is payable on such Interest Payment Dates or the method by which such
date or dates shall be determined, the right, if any, to extend or defer
interest payments and the duration of such extension or deferral;
(e)
if other than U.S. Dollars, the Currency in which Securities of the series
shall
be denominated or in which payment of the principal of, premium, if any, or
interest on the Securities of the series shall be payable and any other terms
concerning such payment and the designation of the mutual exchange rate agent
if
any;
(f) if
the amount of payment of principal of, premium, if any, or interest on the
Securities of the series may be determined with reference to an index, formula
or other method including, but not limited to, an index based on a Currency
or
Currencies other than that in which the Securities are stated to be payable,
the
manner in which such amounts shall be determined and the designation of the
mutual calculator agent thereof, if any;
(g) if
the principal of, premium, if any, or interest on Securities of the series
are
to be payable, at the election of the Company or a Holder thereof, in a Currency
other than that in which the Securities are denominated or stated to be payable
without such election, the period or periods within which, and the terms and
conditions upon which, such election may be made and the time and the manner
of
determining the exchange rate between the Currency in which the Securities
are
denominated or payable without such election and the Currency in which the
Securities are to be paid if such election is made;
(h) the
place or places, if any, in addition to or instead of the Corporate Trust Office
of the Trustee where the principal of, premium, if any, and interest on
Securities of the series shall be payable, and where Securities of any series
may be presented for registration of transfer, exchange or conversion, and
the
place or places where notices and demands to or upon the Company in respect
of
the Securities of such series may be made;
(i) the
price or prices at which, the period or periods within which or the date or
dates on 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, if the
Company is to have that option;
(j) the
obligation or right, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any sinking fund, amortization or analogous
provisions or at the option of a Holder thereof and the price or prices at
which, the period or periods within which or the date or dates on which, the
Currency or Currencies in which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in whole or
in
part, pursuant to such obligation;
(k) if
other than denominations of $1,000 or any integral multiple thereof, the
denominations in which Securities of the series shall be issuable;
(l) if
other than the principal amount thereof, the portion of the principal amount
of
the Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 7.02;
(m) whether
the Securities of the series are to be issued as Original Issue Discount
Securities and the amount of discount with which such Securities may be
issued;
(n) provisions,
if any, for the defeasance of Securities of the series in whole or in part
and
any addition or change in the provisions related to satisfaction and
discharge;
(o) whether
the Securities of the series are to be issued in whole or in part in the form
of
one or more Global Securities and, in such case, the Depositary for such Global
Security or Securities and the terms and conditions, if any, upon which
interests in such Global Security or Securities may be exchanged in whole or
in
part for the individual Securities represented thereby;
(p) the
date as of which any Global Security of the series shall be dated if other
than
the original issuance of the first Security of the series to be
issued;
(q) the
form of the Securities of the series;
(r) if
the Securities of the series are to be convertible into or exchangeable for
any
securities or property of any Person (including the Company), the terms and
conditions upon which such Securities will be so convertible or exchangeable,
and any additions or changes, if any, to permit or facilitate such conversion
or
exchange;
(s) whether
the Securities of such series are subject to subordination and the terms of
such
subordination;
(t) any
restriction or condition on the transferability of the Securities of such
series;
(u) any
addition or change in the provisions related to compensation and reimbursement
of the Trustee which applies to Securities of such series;
(v) any
addition or change in the provisions related to supplemental indentures set
forth in Sections 14.04 and 14.02 which applies to Securities of such
series;
(w) provisions,
if any, granting special rights to Holders upon the occurrence of specified
events;
(x) any
addition to or change in the Events of Default which applies to any Securities
of the series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof
due
and payable pursuant to Section 7.02 and any addition or change in the
provisions set forth in Article VII which applies to Securities of the
series;
(y) any
addition to or change in the covenants set forth in Article VI which applies
to
Securities of the series; and
(z) any
other terms of the Securities of such series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 14.01).
All
Securities of any one series shall be substantially identical, except as to
denomination and except as may otherwise be provided herein or set forth in
a
Company Order or in one or more indentures supplemental hereto.
Section
3.02 Denominations. In
the absence of any specification pursuant to Section 3.01 with respect to
Securities of any series, the Securities of such series shall be issuable only
as Securities in denominations of any integral multiple of $1,000, and shall
be
payable only in U.S. Dollars.
Section
3.03 Execution,
Authentication, Delivery and Dating.
(a) The
Securities shall be executed in the name and on behalf of the Company by the
manual or facsimile signature of its Chairman of the Board of Directors, its
President, one of its Vice Presidents or Treasurer. If the Person
whose signature is on a Security no longer holds that office at the time the
Security is authenticated and delivered, the Security shall nevertheless be
valid.
(b) 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 and the supplemental indenture,
or the Company Order setting forth
the
terms of Securities of the series, if required pursuant to Section
3.01. The Trustee shall thereupon authenticate and deliver such
Securities without any further action by the Company. The Company
Order shall specify the amount of Securities to be authenticated and the date
on
which the original issue of Securities is to be authenticated.
(c) In
authenticating the first Securities of any series and accepting the additional
responsibilities under this Indenture in relation to such Securities the Trustee
shall receive, and (subject to Section 11.02) shall be fully protected in
relying upon an Officer’s Certificate and an Opinion of Counsel, each prepared
in accordance with Section 16.01 stating that the conditions precedent, if
any,
provided for in the Indenture have been complied with.
(d) The
Trustee shall have the right to decline to authenticate and deliver the
Securities under this Section 3.03 if the issue of the 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 which is not
reasonably acceptable to the Trustee.
(e) Each
Security shall be dated the date of its authentication, except as otherwise
provided pursuant to Section 3.01 with respect to the Securities of such
series.
(f) Notwithstanding
the provisions of Section 3.01 and of this Section 3.03, if all of the
Securities of any series are not to be originally issued at the same time,
then
the documents required to be delivered pursuant to this Section 3.03 must be
delivered only once prior to the authentication and delivery of the first
Security of such series;
(g) If
the Company shall establish pursuant to Section 3.01 that the Securities of
a
series are to be issued in whole or in part in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall authenticate
and deliver one or more Global Securities that (i) shall represent an aggregate
amount equal to the aggregate principal amount of the Outstanding Securities
of
such series to be represented by such Global Securities, (ii) shall be
registered, if in registered form, in the name of the Depositary for such Global
Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary’s
instruction and (iv) shall bear a legend substantially to the following
effect:
“Unless
and until it is exchanged in whole or in part for the individual Securities
represented hereby, this Global Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.”
The
aggregate principal amount of each Global Security may from time to time be
increased or decreased by adjustments made on the records of the Security
Custodian, as provided in this Indenture.
(h) Each
Depositary designated pursuant to Section 3.01 for a Global Security in
registered form must, at the time of its designation and at all times while
it
serves as such Depositary, be a clearing agency registered under the Exchange
Act and any other applicable statute or regulation.
(i) Members
of, or participants in, the Depositary (“Members”) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by
the
Depositary or by the Security Custodian under such Global Security, and the
Depositary may be treated by the Company, the Trustee, the Paying Agent and
the
Registrar and any of their agents as the absolute owner of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee, the Paying Agent or the Registrar
or any of their agents from giving effect to any written certification, proxy
or
other authorization furnished by the Depositary or impair, as between the
Depositary and its Members, the operation of customary practices of the
Depositary governing the exercise of the rights of an owner of a beneficial
interest in any Global Security. The Holder of a Global Security may
grant proxies and otherwise authorize any Person, including Members and Persons
that may hold interests through Members, to take any action that a Holder is
entitled to take under this Indenture or the Securities.
(j) 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 one of the forms provided for herein duly
executed by the Trustee or by an Authenticating Agent by manual signature of
an
authorized signatory of the Trustee, 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.
Section
3.04
Temporary Securities.
(a) Pending
the preparation of definitive Securities of any series, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities that are printed, lithographed, typewritten, mimeographed or
otherwise reproduced, in any authorized denomination, substantially of the
tenor
of the definitive Securities in lieu of which they are issued, in registered
form and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Any
such temporary Security may be in global form, representing all or a portion
of
the Outstanding Securities of such series. Every such temporary
Security shall be executed by the Company and shall be authenticated and
delivered by the Trustee upon the same conditions and in substantially the
same
manner, and with the same effect, as the definitive Security or Securities
in
lieu of which it is issued.
(b) If
temporary Securities of any series are issued, the Company will cause definitive
Securities of such 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 for definitive
Securities of such series upon surrender of such temporary Securities at the
office or agency of the Company in a Place of Payment for such 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 the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor. 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.
(c) Upon
any exchange of a portion of a temporary Global Security for a definitive Global
Security or for the individual Securities represented thereby pursuant to this
Section 3.04 or Section 3.06, the temporary Global Security shall be endorsed
by
the Trustee to reflect the reduction of the principal amount evidenced thereby,
whereupon the principal amount of such temporary Global Security shall be
reduced for all purposes by the amount so exchanged and endorsed.
Section
3.05
Registrar and Paying Agent.
(a) The
Company will keep, at an office or agency to be maintained by it in a Place
of
Payment where Securities may be presented for registration or presented and
surrendered for registration of transfer or of exchange, and where Securities
of
any series that are convertible or exchangeable may be surrendered for
conversion or exchange, as applicable (the “Registrar”), a security register for
the registration and the registration of transfer or of exchange of the
Securities (the registers maintained in such office and in any other office
or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the “Register”), as in this Indenture provided, which Register
shall at all reasonable times be open for inspection by the
Trustee. Such Register shall be in written form or in any other form
capable of being converted into written form within a reasonable
time. The Company may have only one Registrar for any
series.
(b) The
Company shall enter into an appropriate agency agreement with any Registrar
not
a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company
shall notify the Trustee of the name and address of each such
agent. If the Company fails to maintain a Registrar for any series,
the Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 11.01. The Company or any Affiliate
thereof may act as Registrar or transfer agent.
(c) The
Company hereby appoints the Trustee at its Corporate Trust Office as Registrar
in connection with the Securities and this Indenture, until such time as another
Person is appointed as such.
Section
3.06
Transfer and Exchange.
(a) Transfer.
(i) Upon
surrender for registration of transfer of any Security of any series at the
Registrar the Company shall execute, and the Trustee or any Authenticating
Agent
shall authenticate and deliver, in the name of the designated transferee, one
or
more new Securities of the same series for like aggregate principal amount
of
any authorized denomination or denominations. The transfer of any
Security shall not be valid as against the Company or the Trustee unless
registered at the Registrar at the request of the Holder, or at the request
of
his, her or its attorney duly authorized in writing.
(ii) Notwithstanding
any other provision of this Section, unless and until it is exchanged in whole
or in part for the individual Securities represented thereby, a Global Security
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee
of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor
Depositary.
(b) Exchange.
(i) At
the option of the Holder, Securities of any series (other than a Global
Security, except as set forth below) may be exchanged for other Securities
of
the same series for like aggregate principal amount of any authorized
denomination or denominations, upon surrender of the Securities to be exchanged
at the Registrar.
(ii) Whenever
any Securities are so surrendered for exchange, the Company shall execute,
and
the Trustee shall authenticate and deliver, the Securities that the Holder
making the exchange is entitled to receive.
(c) Exchange
of Global Securities for Individual Securities. Except as provided
below, owners of beneficial interests in Global Securities will not be entitled
to receive individual Securities.
(i) Individual
Securities shall be issued to all owners of beneficial interests in a Global
Security in exchange for such interests if: (A) at any time the Depositary
for
the Securities of a series notifies the Company that it is unwilling or unable
to continue as Depositary for the Securities of such series or if at any time
the Depositary for the Securities of such series shall no longer be eligible
under Section 3.03(h) and, in each case, a successor Depositary is not appointed
by the Company within 90 days of such notice, or (B) the Company executes and
delivers to the Trustee and the Registrar an Officer’s Certificate stating that
such Global Security shall be so exchangeable.
In
connection with the exchange of an
entire Global Security for individual Securities pursuant to this subsection
(c), such Global Security shall be deemed to be surrendered to the Trustee
for
cancellation, and the Company shall execute, and the Trustee, upon receipt
of a
Company Order for the authentication and delivery of individual Securities
of
such series, will authenticate and deliver to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in such Global
Security, an equal aggregate principal amount of individual Securities of
authorized denominations.
(ii) The
owner of a beneficial interest in a Global Security will be entitled to receive
an individual Security in exchange for such interest if an Event of Default
has
occurred and is continuing. Upon receipt by the
Security
Custodian
and Registrar of instructions from the Holder of a Global Security directing
the
Security Custodian and Registrar to (x) issue one or more individual Securities
in the amounts specified to the owner of a beneficial interest in such Global
Security and (y) debit or cause to be debited an equivalent amount of beneficial
interest in such Global Security, subject to the rules and regulations of the
Depositary:
(A) the
Security Custodian and Registrar shall notify the Company and the Trustee of
such instructions, identifying the owner and amount of such beneficial interest
in such Global Security;
(B) the
Company shall promptly execute and the Trustee, upon receipt of a Company Order
for the authentication and delivery of individual Securities of such series,
shall authenticate and deliver to such beneficial owner individual Securities
in
an equivalent amount to such beneficial interest in such Global Security;
and
(C) the
Security Custodian and Registrar shall decrease such Global Security by such
amount in accordance with the foregoing. In the event that the
individual Securities are not issued to each such beneficial owner promptly
after the Registrar has received a request from the Holder of a Global Security
to issue such individual Securities, the Company expressly acknowledges, with
respect to the right of any Holder to pursue a remedy pursuant to Section 7.07
hereof, the right of any beneficial Holder of Securities to pursue such remedy
with respect to the portion of the Global Security that represents such
beneficial Holder’s Securities as if such individual Securities had been
issued.
(iii) If
specified by the Company pursuant to Section 3.01 with respect to a series
of
Securities, the Depositary for such series of Securities may surrender a Global
Security for such series of Securities in exchange in whole or in part for
individual Securities of such series on such terms as are acceptable to the
Company and such Depositary. Thereupon, the Company shall execute,
and the Trustee shall authenticate and deliver, without service
charge,
(A) to
each Person specified by such Depositary a new individual Security or Securities
of the same series, of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such Person’s
beneficial interest in the Global Security; and
(B) to
such Depositary a new Global Security in a denomination equal to the difference,
if any, between the principal amount of the surrendered Global Security and
the
aggregate
principal amount of individual Securities delivered to Holders
thereof.
(iv) In
any exchange provided for in clauses (i) through (iii), the Company will execute
and the Trustee will authenticate and deliver individual Securities in
registered form in authorized denominations.
(v) Upon
the exchange in full of a Global Security for individual Securities, such Global
Security shall be canceled by the Trustee. Individual Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such Securities
are
so registered.
(d) All
Securities issued upon any registration of transfer or exchange of Securities
shall be valid obligations of the Company evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered for
such registration of transfer or exchange.
(e) Every
Security presented or surrendered for registration of transfer, or for exchange
or payment shall (if so required by the Company, the Trustee or the Registrar)
be duly endorsed, or be accompanied by a written instrument or instruments
of
transfer in form satisfactory to the Company, the Trustee and the Registrar,
duly executed by the Holder thereof or by his, her or its attorney duly
authorized in writing.
(f) No
service charge will be made for any registration of transfer or exchange of
Securities. The Company may require payment of a sum sufficient to
cover any tax, assessment or other governmental charge that may be imposed
in
connection with any registration of transfer or exchange of Securities, other
than those expressly provided in this Indenture to be made at the Company’s own
expense or without expense or charge to the Holders.
(g) The
Company shall not be required to (i) register, transfer or exchange Securities
of any series during a period beginning at the opening of business 15 days
before the day of the transmission of a notice of redemption of Securities
of
such series selected for redemption under Section 4.03 and ending at the close
of business on the day of such transmission, or (ii) register, transfer or
exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in
part.
(h) Prior
to the due presentation for registration of transfer or exchange of any
Security, the Company, the Trustee, the Paying Agent, the Registrar or any
of
their agents may deem and treat the Person in whose name a Security is
registered as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for all purposes whatsoever, and none of the Company, the Trustee,
the
Paying Agent, the Registrar or any of their agents shall be affected by any
notice to the contrary.
(i) In
case a successor Company (“Successor Company”) has executed an indenture
supplemental hereto with the Trustee pursuant to Article XIV, any of the
Securities authenticated or delivered pursuant to such transaction may, from
time to time, at the request of the Successor Company, be exchanged for other
Securities executed in the name of the Successor Company with such changes
in
phraseology and form as may be appropriate, but otherwise identical to the
Securities surrendered for such exchange and of like principal amount; and
the
Trustee, upon Company Order of the Successor Company, shall authenticate and
deliver Securities as specified in such order for the purpose of such
exchange. If Securities shall at any time be authenticated and
delivered in any new name of a Successor Company pursuant to this Section 3.06
in exchange or substitution for or upon registration of transfer of any
Securities, such Successor Company, at the option of the Holders but without
expense to them, shall provide for the exchange of all Securities at the time
Outstanding for Securities authenticated and delivered in such new
name.
(j) Each
Holder of a Security agrees to indemnify the Company and the Trustee against
any
liability that may result from the transfer, exchange or assignment of such
Holder’s Security in violation of any provision of this Indenture and/or
applicable United States federal or state securities laws.
(k) The
Trustee shall have no obligation or duty to monitor, determine or inquire as
to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any
Security other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when
expressly required by the terms of, this Indenture, and to examine the same
to
determine substantial compliance as to form with the express requirements
hereof.
(l) Neither
the Trustee nor any agent of the Trustee shall have any responsibility for
any
actions taken or not taken by the Depositary.
Section
3.07 Mutilated,
Destroyed, Lost and Stolen Securities.
(a) If
(i) any mutilated Security is surrendered to the Trustee at its Corporate Trust
Office or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and there is
delivered to the Company and the Trustee security or indemnity satisfactory
to
them to save each of them and any Paying Agent harmless, and neither the Company
nor the Trustee receives notice that such Security has been acquired by a
protected purchaser, then the Company shall execute and upon Company Order
the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security, a new Security of the same series
and of like tenor, form, terms and principal amount, bearing a number not
contemporaneously outstanding, that neither gain nor loss in interest shall
result from such exchange or substitution.
(b) 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 the amount due on such Security in accordance with
its terms.
(c) 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 respect thereto and any other expenses (including the fees
and
expenses of the Trustee) connected therewith.
(d) Every
new Security of any series issued pursuant to this Section 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.
(e) 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
3.08 Payment
of Interest; Interest Rights Preserved.
(a) Interest
on any Security that is payable and is punctually paid or duly provided for
on
any Interest Payment Date shall be paid to the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close
of
business on the Record Date for such interest notwithstanding the cancellation
of such Security upon any transfer or exchange subsequent to the Record
Date. Payment of interest on Securities shall be made at the
Corporate Trust Office (except as otherwise specified pursuant to Section 3.01)
or, at the option of the Company, by check mailed to the address of the Person
entitled thereto as such address shall appear in the Register or, if provided
pursuant to Section 3.01 and in accordance with arrangements satisfactory to
the
Trustee, at the option of the Holder by wire transfer to an account designated
by the Holder.
(b) Any
interest on any Security that 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 Record Date
by
virtue of his, her or its having been such a Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in clause
(i) or (ii) below:
(i) The
Company may elect to make payment of any Defaulted Interest 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 (a “Special Record Date”), 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 be not more than 15 calendar days and not less than 10
calendar days prior to the date of the proposed payment and not less than 10
calendar 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 the Holders
of such Securities at their addresses as they appear in the Register, not less
than 10 calendar 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 at the close of business on such Special Record
Date
and shall no longer be payable pursuant to the following clause
(ii).
(ii) The
Company may make payment of any Defaulted Interest on 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.
(c) Subject
to the provisions set forth herein relating to Record Dates, each Security
delivered pursuant to any provision of this Indenture in exchange or
substitution for, or upon registration of transfer of, any other Security shall
carry all the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Section
3.09 Cancellation. Unless
otherwise specified pursuant to Section 3.01 for Securities of any series,
all
Securities surrendered for payment, redemption, registration of transfer or
exchange or credit against any sinking fund or otherwise shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee for
cancellation and shall be promptly canceled by it and, if surrendered to the
Trustee, 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 that the Company may have acquired in
any
manner whatsoever, 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 shall dispose of
all canceled Securities held by it in accordance with its then customary
procedures and deliver a certificate of such disposal to the
Company. The acquisition of any Securities by the Company shall not
operate as a redemption or satisfaction of the Indebtedness represented thereby
unless and until such Securities are surrendered to the Trustee for
cancellation.
Section
3.10 Computation
of Interest. Except as otherwise specified pursuant to Section
3.01 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.
Section
3.11 Currency
of Payments in Respect of Securities.
(a) Except
as otherwise specified pursuant to Section 3.01 for Securities of any series,
payment of the principal of and premium, if any, and interest on Securities
of
such series will be made in U.S. Dollars.
(b) For
purposes of any provision of the Indenture where the Holders of Outstanding
Securities may perform an action that requires that a specified percentage
of
the Outstanding Securities of all series perform such action and for purposes
of
any decision or determination by the Trustee of amounts due and unpaid for
the
principal of and premium, if any, and interest on the Securities of all series
in respect of which moneys are to be disbursed ratably, the principal of and
premium, if any, and interest on the Outstanding Securities denominated in
a
Foreign Currency will be the amount in U.S. Dollars based upon exchange rates,
determined as specified pursuant to Section 3.01 for Securities of such series,
as of the date for determining whether the Holders entitled to perform such
action have performed it or as of the date of such decision or determination
by
the Trustee, as the case may be.
(c) Any
decision or determination to be made regarding exchange rates shall be made
by
an agent appointed by the Company; provided, that such agent shall accept such
appointment in writing and the terms of such appointment shall, in the opinion
of the Company at the time of such appointment, require such agent to make
such
determination by a method consistent with the method provided pursuant to
Section 3.01 for the making of such decision or determination. All
decisions and determinations of such agent regarding exchange rates shall in
the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of the
Securities.
Section
3.12 Judgments. The
Company may provide pursuant to Section 3.01 for Securities of any series that
(a) the obligation, if any, of the Company to pay the principal of, premium,
if
any, and interest on the Securities of any series in a Foreign Currency or
U.S.
Dollars (the “Designated Currency”) as may be specified pursuant to Section 3.01
is of the essence and agrees that, to the fullest extent possible under
applicable law, judgments in respect of such Securities shall be given in the
Designated Currency; (b) the obligation of the Company to make payments in
the
Designated Currency of the principal of and premium, if any, and interest on
such Securities shall, notwithstanding any payment in any other Currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the Designated Currency that the Holder receiving such payment
may, in accordance with normal banking procedures, purchase with the sum paid
in
such other Currency (after any premium and cost of exchange) on the business
day
in the country of issue of the Designated Currency or in the international
banking community (in the case of a composite currency) immediately following
the day on which such Holder receives such payment; (c) if the amount in the
Designated Currency that may be so purchased for any reason falls short of
the
amount originally due, the Company shall pay such additional amounts as may
be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
Section
3.13 CUSIP
Numbers. The Company in issuing any Securities may use CUSIP,
ISIN or other similar numbers, if then generally in use, and thereafter with
respect to such series, the Trustee may use such numbers in any notice of
redemption or exchange with respect to such series provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the CUSIP, ISIN or
other
similar numbers.
ARTICLE
IV
REDEMPTION
OF SECURITIES
Section
4.01 Applicability
of Right of Redemption. Redemption of Securities (other than pursuant
to a sinking fund, amortization or analogous provision) permitted by the terms
of any series of Securities shall be made (except as otherwise specified
pursuant to Section 3.01 for Securities of any series) in accordance with this
Article; provided, however, that if any such terms of a series of Securities
shall conflict with any provision of this Article, the terms of such series
shall govern.
Section
4.02 Selection
of Securities to be Redeemed.
(a) If
the Company shall at any time elect to redeem all or any portion of the
Securities of a series then Outstanding, it shall at least 45 days prior to
the
Redemption Date fixed by the Company (unless a shorter period shall be
satisfactory to the Trustee) notify the Trustee of such Redemption Date and
of
the principal amount of Securities to be redeemed, and thereupon the Trustee
shall select, by lot or in such other manner as the Trustee shall deem
appropriate and fair and which may provide for the selection for redemption
of a
portion of the principal amount of any Security of such series; provided that
the unredeemed portion of the principal amount of any Security shall be in
an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. In any case where more than one
Security of such series is registered in the same name, the Trustee may treat
the aggregate principal amount so registered as if it were represented by one
Security of such series. The Trustee shall, as soon as practicable,
notify the Company in writing of the Securities and portions of Securities
so
selected.
(b) For
all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security that has been or is to be
redeemed. If the Company shall so direct, Securities registered in
the name of the Company, any Affiliate or any Subsidiary thereof shall not
be
included in the Securities selected for redemption.
Section
4.03 Notice
of Redemption.
(a) Notice
of redemption shall be given by the Company or, at the Company’s request, by the
Trustee in the name and at the expense of the Company, not less than 30 nor
more
than 60 days prior to the Redemption Date, to the Holders of Securities of
any
series to be redeemed in whole or in part pursuant to this Article, in the
manner provided in Section 16.04. Any notice so given shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. Failure to give such notice, or any defect in
such notice to the Holder of any Security of a series designated for redemption,
in whole or in part, shall not affect the sufficiency of any notice of
redemption with respect to the Holder of any other Security of such
series.
(b) All
notices of redemption shall identify the Securities to be redeemed (including
CUSIP, ISIN or other similar numbers, if available) and shall
state:
(i) such
election by the Company to redeem Securities of such series pursuant to
provisions contained in this Indenture or the terms of the Securities of such
series or a supplemental indenture establishing such series, if such be the
case;
(ii) the
Redemption Date;
(iii) the
Redemption Price;
(iv) if
less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts)
of the Securities of such series to be redeemed;
(v) that
on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed, and that, if applicable, interest thereon
shall cease to accrue on and after said date;
(vi) the
Place or Places of Payment where such Securities are to be surrendered for
payment of the Redemption Price; and
(vii) that
the redemption is for a sinking fund, if such is the case;
Section
4.04 Deposit
of Redemption Price. On or prior to 11:00 a.m., New York City
time, on the Redemption Date for any Securities, the Company shall deposit
with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 6.03) an amount
of money in the Currency in which such Securities are denominated (except as
provided pursuant to Section 3.01) sufficient to pay the Redemption Price of
such Securities or any portions thereof that are to be redeemed on that
date.
Section
4.05 Securities
Payable on Redemption Date. Notice of redemption having
been given as aforesaid, any Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price and from and
after such date (unless the Company shall Default in the payment of the
Redemption Price) such Securities shall cease to bear interest.
Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price; provided,
however, that (unless otherwise provided pursuant to Section 3.01) installments
of interest that have a Stated Maturity on or prior to the Redemption Date
for
such Securities shall be payable according to the terms of such Securities and
the provisions of Section 3.08.
If
any Security called for redemption shall not be so paid upon surrender thereof
for redemption, the principal thereof and premium, if any, thereon shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor
in
the Security.
Section
4.06 Securities
Redeemed in Part. Any Security that is to be redeemed only in
part shall be surrendered at the Corporate Trust Office or such other office
or
agency of the Company as is specified pursuant to Section 3.01 with, if the
Company, the Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company, the
Registrar and the Trustee duly executed by the Holder thereof or his, her or
its
attorney duly authorized in writing, and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of like tenor
and form, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered. In the case of a
Security providing appropriate space for such notation, at the option of the
Holder thereof, the Trustee, in lieu of delivering a new Security or Securities
as aforesaid, may make a notation on such Security of the payment of the
redeemed portion thereof.
ARTICLE
V
SINKING
FUNDS
Section
5.01 Applicability
of Sinking Fund.
(a) Redemption
of Securities permitted or required pursuant to a sinking fund for the
retirement of Securities of a series by the terms of such series of Securities
shall be made in accordance with such terms of such series of Securities and
this Article, except as otherwise specified pursuant to Section 3.01 for
Securities of such series, provided, however, that if any such terms of a series
of Securities shall conflict with any provision of this Article, the terms
of
such series shall govern.
(b) 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 Mandatory Sinking Fund Payment may be subject
to
reduction as provided in Section 5.02.
Section
5.02 Mandatory
Sinking Fund Obligation. The Company may, at its option, satisfy
any Mandatory Sinking Fund Payment obligation, in whole or in part, with respect
to a particular series of Securities by (a) delivering to the Trustee Securities
of such series in
transferable
form theretofore purchased or otherwise acquired by the Company or redeemed
at
the election of the Company pursuant to Section 4.03 or (b) receiving credit
for
Securities of such series (not previously so credited) acquired by the Company
and theretofore delivered to the Trustee. The Trustee shall credit
such Mandatory Sinking Fund Payment obligation with an amount equal to the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such Mandatory Sinking Fund Payment shall
be reduced accordingly. If the Company shall elect to so satisfy any
Mandatory Sinking Fund Payment obligation, it shall deliver to the Trustee
not
less than 45 days prior to the relevant sinking fund payment date a written
notice signed on behalf of the Company by its Chairman of the Board of
Directors, its President, one of its Vice Presidents, its Treasurer or one
of
its Assistant Treasurers, which shall designate the Securities (and portions
thereof, if any) so delivered or credited and which shall be accompanied by
such
Securities (to the extent not theretofore delivered) in transferable
form. In case of the failure of the Company, at or before the time so
required, to give such notice and deliver such Securities the Mandatory Sinking
Fund Payment obligation shall be paid entirely in moneys.
Section
5.03 Optional
Redemption at Sinking Fund Redemption Price. In addition to the
sinking fund requirements of Section 5.02, to the extent, if any, provided
for
by the terms of a particular series of Securities, the Company may, at its
option, make an Optional Sinking Fund Payment with respect to such
Securities. Unless otherwise provided by such terms, (a) to the
extent that the right of the Company to make such Optional Sinking Fund Payment
shall not be exercised in any year, it shall not be cumulative or carried
forward to any subsequent year, and (b) such optional payment shall operate
to
reduce the amount of any Mandatory Sinking Fund Payment obligation as to
Securities of the same series. If the Company intends to exercise its
right to make such optional payment in any year it shall deliver to the Trustee
not less than 45 days prior to the relevant sinking fund payment date a
certificate signed by its Chairman of the Board of Directors, its President,
one
of its Vice Presidents, its Treasurer or one of its Assistant Treasurers stating
that the Company will exercise such optional right, and specifying the amount
which the Company will pay on or before the next succeeding sinking fund payment
date. Such certificate shall also state that no Event of Default has
occurred and is continuing.
Section
5.04 Application
of Sinking Fund Payment.
(a) If
the sinking fund payment or payments made in funds pursuant to either Section
5.02 or 5.03 with respect to a particular series of Securities plus any unused
balance of any preceding sinking fund payments made in funds with respect to
such series shall exceed $50,000 (or a lesser sum if the Company shall so
request, or such equivalent sum for Securities denominated other than in U.S.
Dollars), it shall be applied by the Trustee on the sinking fund payment date
next following the date of such payment, unless the date of such payment shall
be a sinking fund payment date, in which case such payment shall be
applied on such sinking fund payment date, to the redemption of Securities
of such series at the redemption price specified pursuant to Section
4.03(b). The Trustee shall select, in the manner provided in Section
4.02, for redemption on such sinking fund payment date, a sufficient
principal amount of Securities of such series to absorb said funds, as nearly
as
may be, and shall, at the expense and in the name of the Company, thereupon
cause notice of redemption of the Securities to be given in substantially the
manner provided in Section 4.03(a) for the redemption of Securities in part
at
the option of the Company, except that the notice of redemption shall also
state
that the
Securities
are being redeemed for the sinking fund. Any sinking fund moneys not
so applied by the Trustee to the redemption of Securities of such series shall
be added to the next sinking fund payment received in funds by the Trustee
and,
together with such payment, shall be applied in accordance with the provisions
of this Section 5.04. Any and all sinking fund moneys held by the
Trustee on the last sinking fund payment date with respect to Securities of
such
series, and not held for the payment or redemption of particular Securities
of
such series, shall be applied by the Trustee to the payment of the principal
of
the Securities of such series at Maturity.
(b) On
or prior to each sinking fund payment date, the Company shall pay to the Trustee
a sum equal to all interest accrued to but not including the date fixed for
redemption on Securities to be redeemed on such sinking fund payment date
pursuant to this Section 5.04.
(c) The
Trustee shall not redeem any Securities of a series with sinking fund moneys
or
mail any notice of redemption of Securities of such series by operation of
the
sinking fund during the continuance of a Default in payment of interest on
any
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) of which the Trustee
has
actual knowledge, except that if the notice of redemption of any Securities
of such series shall theretofore have been mailed in accordance with the
provisions hereof, the Trustee shall redeem such Securities if funds sufficient
for that purpose shall be deposited with the Trustee in accordance with the
terms of this Article. Except as aforesaid, any moneys in the sinking
fund at the time any such Default or Event of Default shall occur and any moneys
thereafter paid into the sinking fund shall, during the continuance of such
Default or Event of Default, be held as security for the payment of all the
Securities of such series; provided, however, that in case such Default or
Event
of Default shall have been cured or waived as provided herein, such moneys
shall
thereafter be applied on the next sinking fund payment date on which such
moneys are required to be applied pursuant to the provisions of this Section
5.04.
ARTICLE
VI
PARTICULAR
COVENANTS OF THE COMPANY
The
Company hereby covenants and agrees as follows:
Section
6.01 Payments
of Securities. The Company will duly and punctually pay
the principal of and premium, if any, on each series of Securities, and the
interest which shall have accrued thereon, at the dates and place and in the
manner provided in the Securities and in this Indenture.
Section
6.02 Paying
Agent.
(a) The
Company will maintain in each Place of Payment for any series of Securities,
if
any, an office or agency where Securities may be presented or surrendered for
payment, where Securities of such series may be surrendered for registration
of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served (the “Paying
Agent”). The Company will give prompt written
notice
to the Trustee of the location, and any change in the location, of such office
or agency. 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, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as Paying Agent to receive all presentations, surrenders,
notices and demands.
(b) The
Company may also from time to time designate different or additional offices
or
agencies where the Securities of any series may be presented or surrendered
for
any or all such purposes (in or outside of such Place of Payment), and may
from
time to time rescind any such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligations described in the preceding paragraph. The Company will
give prompt written notice to the Trustee of any such additional designation
or
rescission of designation and of any change in the location of any such
different or additional office or agency. The Company shall enter
into an appropriate agency agreement with any Paying Agent not a party to this
Indenture. The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the
Trustee of the name and address of each such agent. The Company or
any Affiliate thereof may act as Paying Agent.
Section
6.03 To
Hold Payment in Trust.
(a) If
the Company or an Affiliate thereof shall at any time act as Paying Agent with
respect to any series of Securities, then, on or before the date on which the
principal of and premium, if any, or interest on any of the Securities of that
series by their terms or as a result of the calling thereof for redemption
shall become payable, the Company or such Affiliate will segregate and hold
in
trust for the benefit of the Holders of such Securities or the Trustee a sum
sufficient to pay such principal and premium, if any, or interest which shall
have so become payable until such sums shall be paid to such Holders or
otherwise disposed of as herein provided, and will notify the Trustee of its
action or failure to act in that regard. Upon any proceeding under
any federal bankruptcy laws with respect to the Company or any Affiliate
thereof, if the Company or such Affiliate is then acting as Paying Agent, the
Trustee shall replace the Company or such Affiliate as Paying
Agent.
(b) If
the Company shall appoint, and at the time have, a Paying Agent for the payment
of the principal of and premium, if any, or interest on any series of
Securities, then prior to 11:00 a.m., New York City time, on the date on which
the principal of and premium, if any, or interest on any of the Securities
of that series shall become payable as aforesaid, whether by their terms or
as a result of the calling thereof for redemption, the Company will deposit
with
such Paying Agent a sum sufficient to pay such principal and premium, if any,
or
interest, such sum to be held in trust for the benefit of the Holders of such
Securities or the Trustee, and (unless such Paying Agent is the Trustee), the
Company or any other obligor of such Securities will promptly notify the Trustee
of its payment or failure to make such payment.
(c) If
the Paying Agent shall be other than the Trustee, the Company will cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section 6.03, that such Paying Agent shall:
(i) hold
all moneys held by it for the payment of the principal of and premium, if any,
or interest on the Securities of that series in trust for the benefit of the
Holders of such Securities until such sums shall be paid to such Holders or
otherwise disposed of as herein provided;
(ii) give
to the Trustee notice of any Default by the Company or any other obligor upon
the Securities of that series in the making of any payment of the principal
of
and premium, if any, or interest on the Securities of that series;
and
(iii) at
any time during the continuance of any such Default, upon the written request
of
the Trustee, pay to the Trustee all sums so held in trust by such Paying
Agent.
(d) Anything
in this Section 6.03 to the contrary notwithstanding, the Company may at any
time, for the purpose of obtaining a release, satisfaction or discharge of
this
Indenture or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by the Company or by any Paying Agent other than the Trustee
as required by this Section 6.03, such sums to be held by the Trustee upon
the
same trusts as those upon which such sums were held by the Company or such
Paying Agent.
(e) Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of and premium, if any,
or
interest on any Security of any series and remaining unclaimed for two years
after such principal and premium, if any, or interest has become due and payable
shall be paid to the Company upon Company Order along with any interest that
has
accumulated thereon as a result of such money being invested at the direction
of
the Company, or (if then held by the Company) shall be discharged from such
trust, and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment of such amounts without interest
thereon, and all liability of the Trustee or such Paying Agent with respect
to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent before
being required to make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The
City of New York, notice that such money remains unclaimed and that, after
a
date specified therein, which shall not be less than 30 days from the date
of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
Section
6.04 Merger,
Consolidation and Sale of Assets. Except as otherwise provided as
contemplated by Section 3.01 with respect to any series of
Securities:
(a) The
Company will not consolidate with any other entity or accept a merger of any
other entity into the Company or permit the Company to be merged into any other
entity, or sell other than for cash or lease all or substantially all its assets
to another entity, or purchase all or substantially all the assets of another
entity, unless (i) either the Company shall be the continuing entity, or the
successor, transferee or lessee entity (if other than the Company) shall
expressly assume, by indenture supplemental hereto, executed and delivered
by such entity
prior
to or simultaneously with such consolidation, merger, sale or lease, the due
and
punctual payment of the principal of and interest and premium, if any, on all
the Securities, according to their tenor, and the due and punctual performance
and observance of all other obligations to the Holders and the Trustee under
this Indenture or under the Securities to be performed or observed by the
Company; and (ii) immediately after such consolidation, merger, sale, lease
or
purchase the Company or the successor, transferee or lessee entity (if other
than the Company) would not be in Default in the performance of any covenant
or
condition of this Indenture. A purchase by a Subsidiary of all or
substantially all of the assets of another entity shall not be deemed to be
a
purchase of such assets by the Company.
(b) Upon
any consolidation with or merger into any other entity, or any sale other than
for cash, or any conveyance or lease of all or substantially all of the assets
of the Company in accordance with this Section 6.04, the successor entity formed
by such consolidation or into or with which the Company is merged or to which
the Company is sold or to which such conveyance, transfer or lease is made
shall
succeed to, and be substituted for, and may exercise every right and power
of,
the Company under this Indenture with the same effect as if such successor
entity had been named as the Company herein, and thereafter, except in the
case
of a lease, the predecessor Company shall be relieved of all obligations and
covenants under this Indenture and the Securities, and from time to time such
entity may exercise each and every right and power of the Company under this
Indenture, in the name of the Company, or in its own name; and any act or
proceeding by any provision of this Indenture required or permitted to be done
by the Board of Directors or any officer of the Company may be done with like
force and effect by the like board or officer of any entity that shall at the
time be the successor of the Company hereunder. In the event of any
such sale or conveyance, but not any such lease, the Company (or any successor
entity which shall theretofore have become such in the manner described in
this
Section 6.04) shall be discharged from all obligations and covenants under
this
Indenture and the Securities and may thereupon be dissolved and
liquidated.
Section
6.05 Compliance
Certificate. Except as otherwise provided as contemplated by
Section 3.01 with respect to any series of Securities, the Company shall furnish
to the Trustee annually, within 120 days after the end of each fiscal year,
a
brief certificate from the principal executive officer, principal financial
officer, principal accounting officer, or vice president and treasurer as to
his
or her knowledge of the Company’s compliance with all conditions and covenants
under this Indenture (which compliance shall be determined without regard to
any
period of grace or requirement of notice provided under this Indenture) and,
in
the event of any Default, specifying each such Default and the nature and status
thereof of which such person may have knowledge. Such certificates
need not comply with Section 16.01 of this Indenture.
Section
6.06 Conditional
Waiver by Holders of Securities. Anything in this
Indenture to the contrary notwithstanding, the Company may fail or omit in
any
particular instance to comply with a covenant or condition set forth herein
with
respect to any series of Securities if the Company shall have obtained and
filed
with the Trustee, prior to the time of such failure or omission, evidence (as
provided in Article VIII) of the consent of the Holders of a majority in
aggregate principal amount of the Securities of such series at the time
Outstanding, either waiving such compliance in such instance or generally
waiving compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly
waived, or impair any right consequent thereon and, until such
waiver
shall
have become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect.
Section
6.07 Statement
by Officers as to Default. The Company shall deliver to
the Trustee as soon as possible and in any event within 30 days after the
Company becomes aware of the occurrence of any Event of Default or an event
which, with the giving of notice or the lapse of time or both, would constitute
an Event of Default, an Officer’s Certificate setting forth the details of such
Event of Default or Default and the action which the Company proposes to take
with respect thereto.
ARTICLE
VII
REMEDIES
OF TRUSTEE AND SECURITYHOLDERS
Section
7.01 Events
of Default. Except where otherwise indicated by the context or
where the term is otherwise defined for a specific purpose, the term “Event of
Default” as used in this Indenture with respect to Securities of any series
shall mean one of the following described events unless it is either
inapplicable to a particular series or it is specifically deleted or modified
in
the manner contemplated in Section 3.01:
(a) the
failure of the Company to pay any installment of interest on any Security of
such series when and as the same shall become payable, which failure shall
have
continued unremedied for a period of 30 days;
(b) the
failure of the Company to pay the principal of (and premium, if any, on) any
Security of such series, when and as the same shall become payable, whether
at
Maturity as therein expressed, by call for redemption (otherwise than pursuant
to a sinking fund), by declaration as authorized by this Indenture or
otherwise;
(c) the
failure of the Company to pay a sinking fund installment, if any, when and
as
the same shall become payable by the terms of a Security of such series, which
failure shall have continued unremedied for a period of 30 days;
(d) the
failure of the Company, subject to the provisions of Section 6.06, to perform
any covenants or agreements contained in this Indenture (including any indenture
supplemental hereto pursuant to which the Securities of such series were issued
as contemplated by Section 3.01) (other than a covenant or agreement which
has
been expressly included in this Indenture solely for the benefit of a series
of
Securities other than that series and other than a covenant or agreement a
default in the performance of which is elsewhere in this Section 7.01
specifically addressed), which failure shall not have been remedied, or without
provision deemed to be adequate for the remedying thereof having been made,
for
a period of 90 days after written notice shall have been given to the Company
by
the Trustee or shall have been given to the Company and the Trustee by Holders
of 25% or more in aggregate principal amount of the Securities of such series
then Outstanding, specifying such failure, requiring the Company to remedy
the
same and stating that such notice is a “Notice of Default”
hereunder;
(e) the
entry by a court having jurisdiction in the premises of a decree or order for
relief in respect of the Company in an involuntary case under the federal
bankruptcy
laws,
as now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator
(or similar official) of the Company or of substantially all the property of
the
Company or ordering the winding-up or liquidation of its affairs and such decree
or order shall remain unstayed and in effect for a period of 90 consecutive
days;
(f) the
commencement by the Company of a voluntary case under the federal bankruptcy
laws, as now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
the
consent by the Company to the entry of an order for relief in an involuntary
case under any such law, or the consent by the Company to the appointment of
or
taking possession by a receiver, liquidator, assignee, trustee, custodian or
sequestrator (or similar official) of the Company or of substantially all the
property of the Company or the making by it of an assignment for the benefit
of
creditors or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company
in furtherance of any action; or
(g) the
occurrence of any other Event of Default with respect to Securities of such
series as provided in Section 3.01;
provided,
however, that no event described in clause (d) or (other than with respect
to a
payment default) (g) above shall constitute an Event of Default hereunder until
a Responsible Officer assigned to and working in the Trustee’s corporate trust
department has actual knowledge thereof or until a written notice of any such
event is received by the Trustee at the Corporate Trust Office, and such notice
refers to the facts underlying such event, the Securities generally, the Company
and the Indenture.
Notwithstanding
the foregoing provisions of this Section 7.01, if the principal or any premium
or interest on any Security is payable in a Currency other than the Currency
of
the United States and such Currency is not available to the Company for making
payment thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company will be entitled
to
satisfy its obligations to Holders of the Securities by making such payment
in
the Currency of the United States in an amount equal to the Currency of the
United States equivalent of the amount payable in such other Currency, as
determined by the Trustee by reference to the noon buying rate in The City
of
New York for cable transfers for such Currency (“Exchange Rate”), as such
Exchange Rate is reported or otherwise made available by the Federal Reserve
Bank of New York on the date of such payment, or, if such rate is not then
available, on the basis of the most recently available Exchange
Rate. Notwithstanding the foregoing provisions of this Section 7.01,
any payment made under such circumstances in the Currency of the United States
where the required payment is in a Currency other than the Currency of the
United States will not constitute an Event of Default under this
Indenture.
Section
7.02 Acceleration;
Recission and Annulment.
(a) Except
as otherwise provided as contemplated by Section 3.01 with respect to any series
of Securities, if any one or more of the above-described Events of
Default
(other
than an Event of Default specified in Section 7.01(e) or 7.01(f)) shall happen
with respect to Securities of any series at the time Outstanding, then, and
in
each and every such case, during the continuance of any such Event of Default,
the Trustee or the Holders of 25% or more in principal amount of the Securities
of such series then Outstanding may declare the principal (or, if the Securities
of that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of and all
accrued but unpaid interest on all the Securities of such series then
Outstanding to be due and payable immediately by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable. If an Event of Default specified in Section 7.01(e) or
7.01(f) occurs and is continuing, then in every such case, the principal amount
of all of the Securities of that series then Outstanding shall automatically,
and without any declaration or any other action on the part of the Trustee
or
any Holder, become due and payable immediately. Upon payment of such
amounts in the Currency in which such Securities are denominated (subject
to Section 7.01 and except as otherwise provided pursuant to Section 3.01),
all
obligations of the Company in respect of the payment of principal of and
interest on the Securities of such series shall terminate.
(b) The
provisions of Section 7.02(a), however, are subject to the condition that,
at
any time after the principal of all the Securities of such series, to which
any
one or more of the above-described Events of Default is applicable, shall have
been so declared to be due and payable, and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Event of Default giving rise to such declaration
of acceleration shall, without further act, be deemed to have been waived,
and
such declaration and its consequences shall, without further act, be deemed
to
have been rescinded and annulled, if:
(i) the
Company has paid or deposited with the Trustee or Paying Agent a sum in the
Currency in which such Securities are denominated (subject to Section 7.01
and
except as otherwise provided pursuant to Section 3.01) sufficient to
pay
(A) all
amounts owing the Trustee and any predecessor trustee hereunder under Section
11.01(a) (provided, however, that all sums payable under this clause (A) shall
be paid in U.S. Dollars);
(B) all
arrears of interest, if any, upon all the Securities of such series (with
interest, to the extent that interest thereon shall be legally enforceable,
on
any overdue installment of interest at the rate borne by such Securities at
the
rate or rates prescribed therefor in such Securities); and
(C) the
principal of and premium, if any, on any Securities of such series that have
become due otherwise than by such declaration of acceleration and interest
thereon;
(ii) every
other Default and Event of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series which
have become due solely by such declaration of acceleration, have been cured
or
waived as provided in Section 7.06.
(c) No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
(d) For
all purposes under this Indenture, if a portion of the principal of any Original
Issue Discount Securities shall have been accelerated and declared due and
payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed,
for
all purposes hereunder, to be such portion of the principal thereof as shall
be
due and payable as a result of such acceleration, and payment of such portion
of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
Section
7.03 Other
Remedies. If the Company shall fail for a period of 30 days to
pay any installment of interest on the Securities of any series or shall fail
to
pay the principal of and premium, if any, on any of the Securities of such
series when and as the same shall become due and payable, whether at Maturity,
or by call for redemption (other than pursuant to the sinking fund), by
declaration as authorized by this Indenture, or otherwise, or shall fail for
a
period of 30 days to make any required sinking fund payment as to a series
of
Securities, then, upon demand of the Trustee, the Company will pay to the Paying
Agent for the benefit of the Holders of Securities of such series then
Outstanding the whole amount which then shall have become due and payable on
all
the Securities of such series, with interest on the overdue principal and
premium, if any, and (so far as the same may be legally enforceable) on the
overdue installments of interest at the rate borne by the Securities of such
series, and all amounts owing the Trustee and any predecessor trustee hereunder
under Section 11.01(a).
In
case the Company shall fail forthwith to pay such amounts upon such demand,
the
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any action or proceeding at law or in equity for
the
collection of the sums so due and unpaid, and may prosecute any such action
or
proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor upon the Securities of
such series, and collect the moneys adjudged or decreed to be payable out of
the
property of the Company or any other obligor upon the Securities of such series,
wherever situated, in the manner provided by law. Every recovery of
judgment in any such action or other proceeding, subject to the payment to
the
Trustee of all amounts owing the Trustee and any predecessor trustee hereunder
under Section 11.01(a), shall be for the ratable benefit of the Holders of
such
series of Securities which shall be the subject of such action or
proceeding. All rights of action upon or under any of the Securities
or this Indenture may be enforced by the Trustee without the possession of
any
of the Securities and without the production of any thereof at any trial or
any
proceeding relative thereto.
Section
7.04 Trustee
as Attorney-in-Fact. The Trustee is hereby appointed, and each
and every Holder of the Securities, by receiving and holding the same, shall
be
conclusively deemed to have appointed the Trustee, the true and lawful
attorney-in-fact of such Holder, with authority to make or file (whether or
not
the Company shall be in Default in respect of the payment of the principal
of,
or interest on, any of the Securities), in its own name and as trustee of an
express trust or otherwise as it shall deem advisable, in any receivership,
insolvency, liquidation, bankruptcy, reorganization or other judicial proceeding
relative to the Company or any other obligor upon the Securities or to their
respective creditors or property, any and all claims, proofs of claim, proofs
of
debt, petitions, consents, other papers and documents and amendments of any
thereof, as may be necessary or advisable in order to have the claims of the
Trustee and any predecessor trustee hereunder and of the Holders of the
Securities allowed in any such proceeding and to collect and receive any moneys
or other property payable or deliverable on any such claim, and to execute
and
deliver any and all other papers and documents and to do and perform any and
all
other acts and things, as it may deem necessary or advisable in order to enforce
in any such proceeding any of the claims of the Trustee and any predecessor
trustee hereunder and of any of such Holders in respect of any of the
Securities; and any receiver, assignee, trustee, custodian or debtor in any
such
proceeding is hereby authorized, and each and every taker or Holder of the
Securities, by receiving and holding the same, shall be conclusively deemed
to
have authorized any such receiver, assignee, trustee, custodian or debtor,
to
make any such payment or delivery only to or on the order of the Trustee, and
to
pay to the Trustee any amount due it and any predecessor trustee hereunder
under
Section 11.01(a); provided, however, that nothing herein contained shall be
deemed to authorize or empower the Trustee to consent to or accept or adopt,
on
behalf of any Holder of Securities, any plan of reorganization or readjustment
affecting the Securities or the rights of any Holder thereof, or to authorize
or
empower the Trustee to vote in respect of the claim of any Holder of any
Securities in any such proceeding.
Section
7.05 Priorities. Any
moneys or properties collected by the Trustee with respect to a series of
Securities under this Article VII shall be applied in the order following,
at
the date or dates fixed by the Trustee for the distribution of such moneys
or
properties and, in the case of the distribution of such moneys or properties
on
account of the Securities of any series, upon presentation of the Securities
of
such series, and stamping thereon the payment, if only partially paid, and
upon
surrender thereof, if fully paid:
First:
To the payment of all amounts due to the Trustee and any predecessor trustee
hereunder under Section 11.01(a).
Second:
In case the principal of the Outstanding Securities of such series shall not
have become due and be unpaid, to the payment of interest on the Securities
of
such series, in the chronological order of the Maturity of the installments
of
such interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
rate
borne by such Securities, such payments to be made ratably to the Persons
entitled thereto.
Third:
In case the principal of the Outstanding Securities of such series shall have
become due, by declaration or otherwise, to the payment of the whole amount
then
owing and unpaid upon the Securities of such series for principal and premium,
if any, and
interest,
with interest on the overdue principal and premium, if any, and (to the extent
that such interest has been collected by the Trustee) upon overdue installments
of interest at the rate borne by the Securities of such series, and in case
such
moneys shall be insufficient to pay in full the whole amounts so due and unpaid
upon the Securities of such series, then to the payment of such principal and
premium, if any, and interest without preference or priority of principal and
premium, if any, over interest, or of interest over principal and premium,
if
any, or of any installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such series,
ratably to the aggregate of such principal and premium, if any, and accrued
and
unpaid interest.
Any
surplus then remaining shall be paid to the Company or as directed by a court
of
competent jurisdiction.
Section
7.06 Control
by Securityholders; Waiver of Past Defaults. The Holders of a
majority in principal amount of the Securities of any series at the time
Outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee hereunder, or of exercising any trust
or
power hereby conferred upon the Trustee with respect to the Securities of such
series, provided, however, that, subject to the provisions of Sections 11.01
and
11.02, the Trustee shall have the right to decline to follow any such direction
if the Trustee being advised by counsel determines that the action so directed
may not lawfully be taken or would be unduly prejudicial to Holders not joining
in such direction or would involve the Trustee in personal
liability. Prior to any declaration accelerating the Maturity of the
Securities of any series, the Holders of a majority in aggregate principal
amount of such series of Securities at the time Outstanding may on behalf of
the
Holders of all of the Securities of such series waive any past Default or Event
of Default hereunder and its consequences except a Default in the payment of
interest or any premium on or the principal of the Securities of such
series. Upon any such waiver the Company, the Trustee and the Holders
of the Securities of such series shall be restored to their former positions
and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon. Whenever any Default or Event of Default hereunder shall
have been waived as permitted by this Section 7.06, said Default or Event of
Default shall for all purposes of the Securities of such series and this
Indenture be deemed to have been cured and to be not continuing.
Section
7.07 Limitation
on Suits. No Holder of any Security of any series shall have any
right to institute any action, suit or proceeding at law or in equity for the
execution of any trust hereunder or for the appointment of a receiver or for
any
other remedy hereunder, in each case with respect to an Event of Default with
respect to such series of Securities, unless such Holder previously shall have
given to the Trustee written notice of one or more of the Events of Default
herein specified with respect to such series of Securities, and unless also
the
Holders of 25% in principal amount of the Securities of such series then
Outstanding shall have requested the Trustee in writing to take action in
respect of the matter complained of, and unless also there shall have been
offered to the Trustee security and indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after receipt of such notification, request and offer
of
indemnity, shall have neglected or refused to institute any such action, suit
or
proceeding; no direction inconsistent with such written request
has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series; and such
notification, request and offer of indemnity are hereby declared in every such
case to be conditions precedent to any such action, suit or proceeding by any
Holder of any Security of such series; it being understood and intended that
no
one or more of the Holders of Securities of such series shall have any right
in
any manner whatsoever by his, her, its or their action to enforce any right
hereunder, except in the manner herein provided, and that every action, suit
or
proceeding at law or in equity shall be instituted, had and maintained in the
manner herein provided and for the equal benefit of all Holders of the
Outstanding Securities of such series; provided, however, that nothing in this
Indenture or in the Securities of such series shall affect or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on the Securities of such series
to
the respective Holders of such Securities at the respective due dates in such
Securities stated, or affect or impair the right, which is also absolute and
unconditional, of such Holders to institute suit to enforce the payment
thereof.
Section
7.08 Undertaking
for Costs. All parties to this Indenture and each Holder of any
Security, by such Holder’s acceptance thereof, shall be deemed to have agreed
that any court may in its discretion require, in any action, suit or proceeding
for the enforcement of any right or remedy under this Indenture, or in any
action, suit or proceeding against the Trustee for any action taken or omitted
by it as Trustee, the filing by any party litigant in such action, suit or
proceeding of an undertaking to pay the costs of such action, suit or
proceeding, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys’ fees, against any party litigant in such action,
suit or proceeding, having due regard to the merits and good faith of the claims
or defenses made by such party litigant; provided, however, that the provisions
of this Section 7.08 shall not apply to any action, suit or proceeding
instituted by the Trustee, to any action, suit or proceeding instituted by
any
one or more Holders of Securities holding in the aggregate more than 10% in
principal amount of the Securities of any series Outstanding, or to any action,
suit or proceeding instituted by any Holder of Securities of any series for
the
enforcement of the payment of the principal of or premium, if any, or the
interest on, any of the Securities of such series, on or after the respective
due dates expressed in such Securities.
Section
7.09 Remedies
Cumulative. No remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities of any series is intended to be
exclusive of any other remedy or remedies, and each and every remedy shall
be
cumulative and shall be in addition to every other remedy given hereunder or
now
or hereafter existing at law or in equity or by statute. No delay or
omission of the Trustee or of any Holder of the Securities of any series to
exercise any right or power accruing upon any Default or Event of Default shall
impair any such right or power or shall be construed to be a waiver of any
such
Default or Event of Default or an acquiescence therein; and every power and
remedy given by this Article VII to the Trustee and to the Holders of Securities
of any series, respectively, may be exercised from time to time and as often
as
may be deemed expedient by the Trustee or by the Holders of Securities of such
series, as the case may be. In case the Trustee or any Holder of
Securities of any series shall have proceeded to enforce any right under this
Indenture and the proceedings for the enforcement thereof shall have been
discontinued or abandoned because of waiver or for any other reason or shall
have been adjudicated adversely to the Trustee or to such Holder of Securities,
then and in every such case the Company, the Trustee and the Holders of the
Securities of such series shall
severally
and respectively be restored to their former positions and rights hereunder,
and
thereafter all rights, remedies and powers of the Trustee and the Holders of
the
Securities of such series shall continue as though no such proceedings had
been
taken, except as to any matters so waived or adjudicated.
ARTICLE
VIII
CONCERNING
THE SECURITYHOLDERS
Section
8.01 Evidence
of Action of Securityholders. Whenever in this Indenture
it is provided that the Holders of a specified percentage or a majority in
aggregate principal amount of the Securities or of any series of Securities
may
take any action (including the making of any demand or request, the giving
of
any notice, consent or waiver or the taking of any other action), the fact
that
at the time of taking any such action the Holders of such specified percentage
or majority have joined therein may be evidenced by (a) any instrument or any
number of instruments of similar tenor executed by Securityholders in person,
by
an agent or by a proxy appointed in writing, including through an
electronic system for tabulating consents operated by the Depositary for such
series or otherwise (such action becoming effective, except as herein otherwise
expressly provided, when such instruments or evidence of electronic consents
are
delivered to the Trustee and, where it is hereby expressly required, to the
Company), or (b) by the record of the Holders of Securities voting in favor
thereof at any meeting of Securityholders duly called and held in accordance
with the provisions of Article IX, or (c) by a combination of such instrument
or
instruments and any such record of such a meeting of
Securityholders.
Section
8.02 Proof
of Execution or Holding of Securities. Proof of the execution of
any instrument by a Securityholder or his, her or its agent or proxy and proof
of the holding by any Person of any of the Securities shall be sufficient if
made in the following manner:
(a) The
fact and date of the execution by any Person of any such instrument may be
proved (i) by the certificate of any notary public or other officer in any
jurisdiction who, by the laws thereof, has power to take acknowledgments or
proof of deeds to be recorded within such jurisdiction, that the Person who
signed such instrument did acknowledge before such notary public or other
officer the execution thereof, or (ii) by the affidavit of a witness of such
execution sworn to before any such notary or other officer. Where
such execution is by a Person acting in other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority.
(b) The
ownership of Securities of any series shall be proved by the Register of such
Securities or by a certificate of the Registrar for such series.
(c) The
record of any Holders’ meeting shall be proved in the manner provided in Section
9.06.
(d) The
Trustee may require such additional proof of any matter referred to in this
Section 8.02 as it shall deem appropriate or necessary, so long as the request
is a reasonable one.
(e) If
the Company shall solicit from the Holders of Securities of any series any
action, the Company may, at its option fix in advance a record date for the
determination of Holders of Securities entitled to take such action, but the
Company shall have no obligation to do so. Any such record date shall
be fixed at the Company’s discretion. If such a record date is fixed,
such action may be sought or given before or after the record date, but only
the
Holders of Securities of record at the close of business on such record date
shall be deemed to be Holders of Securities for the purpose of determining
whether Holders of the requisite proportion of Outstanding Securities of
such series have authorized or agreed or consented to such action, and for
that
purpose the Outstanding Securities of such series shall be computed as of such
record date.
Section
8.03 Persons
Deemed Owners.
(a) The
Company, the Trustee and any agent of the Company or the Trustee may treat
the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and premium, if any, and
(subject to Section 3.08) interest, if any, 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. All payments made to any Holder,
or upon his, her or its order, shall be valid, and, to the extent of the sum
or
sums paid, effectual to satisfy and discharge the liability for moneys payable
upon such Security.
(b) None
of the Company, the Trustee, any Paying Agent or the Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Section
8.04 Effect
of Consents. After an amendment, supplement, waiver or other
action becomes effective as to any series of Securities, a consent to it by
a
Holder of such series of Securities is a continuing consent conclusive and
binding upon such Holder and every subsequent Holder of the same Securities
or
portion thereof, and of any Security issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Security. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.
ARTICLE
IX
SECURITYHOLDERS’
MEETINGS
Section
9.01 Purposes
of Meetings. A meeting of Securityholders of any or all series
may be called at any time and from time to time pursuant to the provisions
of
this Article IX for any of the following purposes:
(a) to
give any notice to the Company or to the Trustee, or to give any directions
to
the Trustee, or to consent to the waiving of any Default or Event of Default
hereunder and its consequences, or to take any other action authorized to be
taken by Securityholders pursuant to any of the provisions of Article
VIII;
(b) to
remove the Trustee and nominate a successor trustee pursuant to the provisions
of Article XI;
(c) to
consent to the execution of an Indenture or of indentures supplemental hereto
pursuant to the provisions of Section 14.02; or
(d) to
take any other action authorized to be taken by or on behalf of the Holders
of
any specified aggregate principal amount of the Securities of any one or more
or
all series, as the case may be, under any other provision of this Indenture
or
under applicable law.
Section
9.02 Call
of Meetings by Trustee. The Trustee may at any time call a
meeting of all Securityholders of all series that may be affected by the action
proposed to be taken, to take any action specified in Section 9.01, to be held
at such time and at such place as the Trustee shall determine. Notice
of every meeting of the Securityholders of a series, setting forth the time
and
the place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be mailed to Holders of Securities of such series at
their addresses as they shall appear on the Register of the
Company. Such notice shall be mailed not less than 20 nor more than
90 days prior to the date fixed for the meeting.
Section
9.03 Call
of Meetings by Company or Securityholders. In case at any time
the Company or the Holders of at least 10% in aggregate principal amount of
the
Securities of a series (or of all series, as the case may be) then Outstanding
that may be affected by the action proposed to be taken, shall have requested
the Trustee to call a meeting of Securityholders of such series (or of all
series), by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
the
notice of such meeting within 20 days after receipt of such request, then the
Company or such Securityholders may determine the time and the place for such
meeting and may call such meeting to take any action authorized in Section
9.01,
by mailing notice thereof as provided in Section 9.02.
Section
9.04 Qualifications
for Voting. To be entitled to vote at any meeting of
Securityholders, a Person shall (a) be a Holder of one or more Securities
affected by the action proposed to be taken at the meeting or (b) be a Person
appointed by an instrument in writing as proxy by a Holder of one or more such
Securities. The only Persons who shall be entitled to be present or
to speak at any meeting of Securityholders shall be the Persons entitled to
vote
at such meeting and their counsel and any representatives of the Trustee and
its
counsel and any representatives of the Company and its counsel.
Section
9.05 Regulation
of Meetings.
(a) Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Securityholders, in
regard to proof of the holding of Securities and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting
as
it shall deem fit.
(b) The
Trustee shall, by an instrument in writing, appoint a temporary chairman of
the
meeting, unless the meeting shall have been called by the Company or
by
Securityholders
as provided in Section 9.03, in which case the Company or the Securityholders
calling the meeting, as the case may be, shall in like manner appoint a
temporary chair. A permanent chairman and a permanent secretary of
the meeting shall be elected by majority vote of the meeting.
(c) At
any meeting of Securityholders of a series, each Securityholder of such series
of such Securityholder’s proxy shall be entitled to one vote for each $1,000
principal amount of Securities of such series Outstanding held or represented
by
him; provided, however, that no vote shall be cast or counted at any meeting
in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Securities of such series
held by him or her or instruments in writing as aforesaid duly designating
him
or her as the Person to vote on behalf of other Securityholders. At
any meeting of the Securityholders duly called pursuant to the provisions of
Section 9.02 or 9.03 the presence of Persons holding or representing Securities
in an aggregate principal amount sufficient to take action upon the business
for
the transaction of which such meeting was called shall be necessary to
constitute a quorum, and any such meeting may be adjourned from time to time
by
a majority of those present, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further notice.
Section
9.06 Voting. The
vote upon any resolution submitted to any meeting of Securityholders of a series
shall be by written ballots on which shall be subscribed the signatures of
the
Holders of Securities of such series or of their representatives by proxy and
the principal amounts of the Securities of such series held or represented
by
them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of
votes
on any vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 9.02. The
record shall show the principal amounts of the Securities voting in favor of
or
against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one
of
the duplicates shall be delivered to the Company and the other to the Trustee
to
be preserved by the Trustee.
Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
Section
9.07 No
Delay of Rights by Meeting. Nothing contained in this
Article IX shall be deemed or construed to authorize or permit, by reason of
any
call of a meeting of Securityholders of any series or any rights expressly
or
impliedly conferred hereunder to make such call, any hindrance or delay in
the
exercise of any right or rights conferred upon or reserved to the Trustee or
to
the Securityholders of such series under any of the provisions of this Indenture
or of the Securities of such series.
ARTICLE
X
REPORTS
BY THE COMPANY AND THE TRUSTEE AND
SECURITYHOLDERS’
LISTS
Section
10.01 Reports by
Trustee.
(a) So
long as any Securities are outstanding, the Trustee shall transmit to Holders
such reports concerning the Trustee and its actions under this Indenture as
may
be required pursuant to the Trust Indenture Act at the times and in the manner
provided therein. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within 60 days after each ___________
following the date of this Indenture deliver to Holders a brief report
which complies with the provisions of such Section 313(a).
(b) The
Trustee shall, at the time of the transmission to the Holders of Securities
of
any report pursuant to the provisions of this Section 10.01, file a copy of
such
report with each stock exchange upon which the Securities are listed, if any,
and also with the SEC in respect of a Security listed and registered on a
national securities exchange, if any. The Company agrees to notify
the Trustee when, as and if the Securities become listed on any stock
exchange.
The
Company will reimburse the Trustee for all expenses incurred in the preparation
and transmission of any report pursuant to the provisions of this Section 10.01
and of Section 10.02.
Section
10.02 Reports by
the Company. The Company shall file with the Trustee and
the SEC, and transmit to Holders, such information, documents and other reports,
and such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided in the Trust Indenture Act; provided
that, unless available on EDGAR, any such information, documents or reports
required to be filed with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 30 days after the same
is
filed with the SEC; and provided further, that the filing of the reports
specified in Section 13 or 15(d) of the Exchange Act by an entity that is the
direct or indirect parent of the Company will satisfy the requirements of this
Section 10.02 so long as such entity is an obligor or guarantor on the
Securities; and provided further that the reports of such entity will not be
required to include condensed consolidating financial information for the
Company in a footnote to the financial statements of such entity.
Section
10.03 Securityholders’
Lists. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee:
(a) semi-annually,
within 15 days after each Record Date, but in any event not less frequently
than
semi-annually, a list in such form as the Trustee may reasonably require of
the
names and addresses of the Holders of Securities to which such Record Date
applies, as of such Record Date, and
(b) at
such other times as the Trustee may request in writing, within 30 days after
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished;
provided,
however, that so long as the Trustee shall be the Registrar, such lists shall
not be required to be furnished.
ARTICLE
XI
CONCERNING
THE TRUSTEE
Section
11.01 Rights of
Trustees; Compensation and Indemnity. The Trustee accepts the
trusts created by this Indenture upon the terms and conditions hereof, including
the following, to all of which the parties hereto and the Holders from time
to
time of the Securities agree:
(a) The
Trustee shall be entitled to such compensation as the Company and the Trustee
shall from time to time agree in writing for all services rendered by it
hereunder (including in any agent capacity in which it acts). The
compensation of the Trustee shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee (including the reasonable expenses and disbursements of its agents
and
counsel), except any such expense, disbursement or advance as may be and to
the extent attributable to its negligence, bad faith or willful
misconduct.
The
Company also agrees to indemnify each of the Trustee and any predecessor Trustee
hereunder for, and to hold it harmless against, any and all loss, liability,
damage, claim, or expense incurred without its own negligence, bad faith or
willful misconduct, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder and the performance of its
duties (including in any agent capacity in which it acts), as well as the costs
and expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder,
except those attributable to its negligence, willful misconduct or bad
faith. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have one separate counsel and
the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.
As
security for the performance of the obligations of the Company under this
Section 11.01(a), the Trustee shall have a lien upon all property and funds
held
or collected by the Trustee as such, except funds held in trust by the Trustee
to pay principal of and interest on any Securities. Notwithstanding
any provisions of this Indenture to the contrary, the obligations of the Company
to compensate and indemnify the Trustee under this Section 11.01(a) shall
survive the resignation or removal of the Trustee and any satisfaction and
discharge under Article XII or any other termination of this
Indenture. When the Trustee incurs expenses or renders services after
an Event of Default specified in clause (e) or (f) of Section 7.01 occurs,
the
expenses and compensation for the services are intended to constitute expenses
of administration under any applicable federal or state bankruptcy,
insolvency or similar laws.
(b) The
Trustee may execute any of the trusts or powers hereof and perform any duty
hereunder either directly or by its agents and attorneys and shall not be
responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due
care by it hereunder.
(c) The
Trustee shall not be responsible in any manner whatsoever for the correctness
of
the recitals herein or in the Securities (except its certificates of
authentication thereon) contained, all of which are made solely by the Company;
and the Trustee shall not be responsible or accountable in any manner whatsoever
for or with respect to the validity or execution or sufficiency of this
Indenture or of the Securities (except its certificates of authentication
thereon), and the Trustee makes no representation with respect thereto, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility
on
Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. The Trustee shall not be
accountable for the use or application by the Company of any Securities, or
the proceeds of any Securities, authenticated and delivered by the Trustee
in
conformity with the provisions of this Indenture.
(d) The
Trustee may consult with counsel of its selection, and, to the extent permitted
by Section 11.02, any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered by
the
Trustee hereunder in good faith and in accordance with such Opinion of
Counsel.
(e) The
Trustee, to the extent permitted by Section 11.02, may rely upon the certificate
of the Secretary or one of the Assistant Secretaries of the Company as to the
adoption of any Board Resolution or resolution of the stockholders of the
Company, and any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by, and whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee may rely upon, an Officer’s Certificate of the
Company (unless other evidence in respect thereof be herein specifically
prescribed).
(f) Subject
to Section 11.04, the Trustee or any agent of the Trustee, in its individual
or
any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with
the Company with the same rights it would have had if it were not the Trustee
or
such agent.
(g) Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
(h) Any
action taken by the Trustee pursuant to any provision hereof at the request
or
with the consent of any Person who at the time is the Holder of any Security
shall be conclusive and binding in respect of such Security upon all future
Holders thereof or of any Security or Securities which may be issued for or
in
lieu thereof in whole or in part, whether or not such Security shall have noted
thereon the fact that such request or consent had been made or
given.
(i) Subject
to the provisions of Section 11.02, the Trustee may conclusively rely and shall
be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture or other paper or document believed by it
to be
genuine and to have been signed or presented by the proper party or
parties.
(j) Subject
to the provisions of Section 11.02, the Trustee shall not be under any
obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the Holders of the
Securities, pursuant to any provision of this Indenture, unless one or more
of
the Holders of the Securities shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which
may be incurred by it therein or thereby.
(k) Subject
to the provisions of Section 11.02, the Trustee shall not be liable for any
action taken or omitted by it in good faith and believed by it to be authorized
or within its discretion or within the rights or powers conferred upon it by
this Indenture.
(l) Subject
to the provisions of Section 11.02, the Trustee shall not be deemed to have
knowledge or notice of any Default or Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless the Holders of
not
less than 25% of the Outstanding Securities notify the Trustee
thereof.
(m) Subject
to the provisions of the first paragraph of Section 11.02, the Trustee shall
not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
Indebtedness or other paper or document, but the Trustee may, but shall not
be
required to, make further inquiry or investigation into such facts or matters
as
it may see fit.
(n) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and
shall be enforceable by, the Trustee in each of its capacities
hereunder.
Section
11.02 Duties of
Trustee.
(a) If
one or more of the Events of Default specified in Section 7.01 with respect
to
the Securities of any series shall have happened, then, during the continuance
thereof, the Trustee shall, with respect to such Securities, exercise such
of
the rights and powers vested in it by this Indenture, and shall use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of such person’s own
affairs.
(b) None
of the provisions of this Indenture shall be construed as relieving the Trustee
from liability for its own negligent action, its own negligent action, negligent
failure to act, or its own willful misconduct, except that, anything in this
Indenture contained to the contrary notwithstanding,
(i) unless
and until an Event of Default specified in Section 7.01 with respect to the
Securities of any series shall have happened which at the time is
continuing,
(A) the
Trustee undertakes to perform such duties and only such duties with respect
to
the Securities of that series as are specifically set out in this Indenture,
and
no implied covenants or obligations shall be read into this Indenture against
the Trustee, whose duties and obligations shall be determined solely by the
express provisions of this Indenture; and
(B) the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, in the absence of bad faith
on
the part of the Trustee, upon certificates and opinions furnished to it pursuant
to the express provisions of this Indenture; but in the case of any such
certificates or opinions which, by the provisions of this Indenture, are
specifically required to be furnished to the Trustee, the Trustee shall be
under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts, statements, opinions or conclusions
stated therein);
(ii) the
Trustee shall not be liable to any Holder of Securities or to any other Person
for any error of judgment made in good faith by a Responsible Officer or
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the
Trustee shall not be liable to any Holder of Securities or to any other Person
with respect to any action taken or omitted to be taken by it in good faith,
in
accordance with the direction of Securityholders given as provided in Section
7.06, relating to the time, method and place of conducting any proceeding for
any remedy available to it or exercising any trust or power conferred upon
it by
this Indenture.
(c) None
of the provisions of this Indenture shall require the Trustee to expend or
risk
its own funds or otherwise to incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of
such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether
or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section 11.02.
Section
11.03 Notice of
Defaults. Within 90 days after the occurrence thereof, and if
known to the Trustee, the Trustee shall give to the Holders of the Securities
of
a series notice of each Default or Event of Default with respect to the
Securities of such series known to the Trustee, by transmitting such notice
to
Holders at their addresses as the same shall then appear on the Register of
the
Company, unless such Default shall have been cured or waived before the giving
of such notice (the term “Default” being hereby defined to be the events
specified in Section 7.01, which are, or after notice or lapse of time or both
would become, Events of Default as defined in said Section). Except
in the case of a Default or Event of Default in payment of the principal of,
premium, if any, or interest on any of the Securities of such series when and
as
the same shall become payable, or to make any sinking fund payment as to
Securities of the same series, the Trustee shall be protected in withholding
such notice, if and so long as a Responsible Officer or Responsible Officers
of
the Trustee in good faith determines that the withholding of such notice is
in
the interests of the Holders of the Securities of such series.
Section
11.04 Eligibility;
Disqualification.
(a) The
Trustee shall at all times satisfy the requirements of TIA Section
310(a). The Trustee shall have a combined capital and surplus of at
least $50 million as set forth in its most recent published annual report of
condition, and shall have a Corporate Trust Office. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this
Section 11.04, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) The
Trustee shall comply with TIA Section 310(b); provided, however, that there
shall be excluded from the operation of TIA Section 310(b)(i) any indenture
or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(i) are
met. If the Trustee has or shall acquire a conflicting interest
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and
this
Indenture. If Section 310(b) of the Trust Indenture Act is amended
any time after the date of this Indenture to change the circumstances under
which a Trustee shall be deemed to have a conflicting interest with respect
to
the Securities of any series or to change any of the definitions in connection
therewith, this Section 11.04 shall be automatically amended to incorporate
such
changes.
Section
11.05 Registration
and Notice; Removal. The Trustee, or any successor to it
hereafter appointed, may at any time resign and be discharged of the trusts
hereby created with respect to any one or more or all series of Securities
by
giving to the Company notice in writing. Such resignation shall take
effect upon the appointment of a successor Trustee and the acceptance of such
appointment by such successor Trustee. Any Trustee hereunder may be
removed with respect to any series of Securities at any time by the filing
with
such Trustee and the delivery to the Company of an instrument or instruments
in
writing signed by the Holders of a majority in principal amount of the
Securities of such series then Outstanding, specifying such removal and the
date
when it shall become effective.
If
at any time:
(1) the
Trustee shall fail to comply with the provisions of TIA Section 310(b) after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the
Trustee shall cease to be eligible under Section 11.04 and shall fail to resign
after written request therefor by the Company or by any Holder who has been
a
bona fide Holder of a Security for at least six months, or
(3) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed
or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then,
in any such case, (i) the Company by written notice to the Trustee may remove
the Trustee and appoint a successor Trustee with respect to all Securities,
or
(ii) subject to TIA Section 315(e), any Securityholder who has been a bona
fide
Holder of a Security for at least six months may, on behalf of himself and
all
others similarly situated, petition any court of competent jurisdiction for
the
removal of the Trustee with respect to all Securities and the appointment of
a
successor Trustee or Trustees.
Upon
its resignation or removal, any Trustee shall be entitled to the payment of
reasonable compensation for the services rendered hereunder by such Trustee
and
to the payment of all reasonable expenses incurred hereunder and all moneys
then
due to it hereunder. The Trustee’s rights to indemnification provided
in Section 11.01(a) shall survive its resignation or removal.
Section
11.06 Successor
Trustee by Appointment.
(a) In
case at any time the Trustee shall resign, or shall be removed (unless the
Trustee shall be removed as provided in Section 11.04(b), in which event the
vacancy shall be filled as provided in said subdivision), or shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or if a
receiver of the Trustee or of its property shall be appointed, or if any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation with
respect to the Securities of one or more series, a successor Trustee with
respect to the Securities of that or those series (it being understood that
any
such successor Trustee may be appointed with respect to the Securities of one
or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any series) may be appointed by the Holders
of
a majority in principal amount of the Securities of that or those series then
Outstanding, by an instrument or instruments in writing signed in duplicate
by
such Holders and filed, one original thereof with the Company and the other
with
the successor Trustee; but, until a successor Trustee shall have been so
appointed by the Holders of Securities of that or those series as herein
authorized, the Company, or, in case all or substantially all the assets of
the
Company shall be in the possession of one or more custodians or receivers
lawfully appointed, or of trustees in bankruptcy or reorganization proceedings
(including a trustee or trustees appointed under the provisions of the federal
bankruptcy laws, as now or hereafter constituted), or of assignees for the
benefit of creditors, such receivers, custodians, trustees or assignees, as
the
case may be, by an instrument in writing,
shall
appoint a successor Trustee with respect to the Securities of such
series. Subject to the provisions of Sections 11.04 and 11.05, upon
the appointment as aforesaid of a successor Trustee with respect to the
Securities of any series, the Trustee with respect to the Securities of such
series shall cease to be Trustee hereunder. After any such
appointment other than by the Holders of Securities of that or those series,
the
Person making such appointment shall forthwith cause notice thereof to be mailed
to the Holders of Securities of such series at their addresses as the same
shall
then appear on the Register of the Company but any successor Trustee with
respect to the Securities of such series so appointed shall, immediately and
without further act, be superseded by a successor Trustee appointed by the
Holders of Securities of such series in the manner above prescribed, if such
appointment be made prior to the expiration of one year from the date of the
mailing of such notice by the Company, or by such receivers, trustees or
assignees.
(b) If
any Trustee with respect to the Securities of one or more series shall resign
or
be removed and a successor Trustee shall not have been appointed by the Company
or by the Holders of the Securities of such series or, if any successor Trustee
so appointed shall not have accepted its appointment within 30 days after such
appointment shall have been made, the resigning Trustee at the expense of the
Company may apply to any court of competent jurisdiction for the
appointment of a successor Trustee. If in any other case a successor
Trustee shall not be appointed pursuant to the foregoing provisions of this
Section 11.06 within three months after such appointment might have been made
hereunder, the Holder of any Security of the applicable series or any retiring
Trustee at the expense of the Company may apply to any court of competent
jurisdiction to appoint a successor Trustee. Such court may
thereupon, in any such case, after such notice, if any, as such court may deem
proper and prescribe, appoint a successor Trustee.
(c) Any
successor Trustee appointed hereunder with respect to the Securities of one
or
more series shall execute, acknowledge and deliver to its predecessor Trustee
and to the Company, or to the receivers, trustees, assignees or court appointing
it, as the case may be, an instrument accepting such appointment hereunder,
and
thereupon such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts, immunities,
duties and obligations with respect to such series of such predecessor Trustee
with like effect as if originally named as Trustee hereunder, and such
predecessor Trustee, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to pay over, and such successor Trustee shall
be entitled to receive, all moneys and properties held by such predecessor
Trustee as Trustee hereunder, subject nevertheless to its lien provided for
in
Section 11.01(a). Nevertheless, on the written request of the Company
or of the successor Trustee or of the Holders of at least 10% in principal
amount of the Securities of such series then Outstanding, such predecessor
Trustee, upon payment of its said charges and disbursements, shall execute
and deliver an instrument transferring to such successor Trustee upon the trusts
herein expressed all the rights, powers and trusts of such predecessor Trustee
and shall assign, transfer and deliver to the successor Trustee all moneys
and
properties held by such predecessor Trustee, subject nevertheless to its lien
provided for in Section 11.01(a); and, upon request of any such successor
Trustee and the Company shall make, execute, acknowledge and deliver any and
all
instruments in writing for more fully and effectually vesting in and confirming
to such successor Trustee all such authority, rights, powers, trusts,
immunities, duties and obligations.
Section
11.07 Successor
Trustee by Merger. Any Person into which the Trustee or any
successor to it in the trusts created by this Indenture shall be merged or
converted, or any Person with which it or any successor to it shall be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee or any such successor to it shall be a party,
or any Person to which the Trustee or any successor to it shall sell or
otherwise transfer all or substantially all of the corporate trust business
of
the Trustee, shall be the successor Trustee under this Indenture without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided that such Person shall be otherwise qualified and
eligible under this Article. In case at the time such successor to
the Trustee shall succeed to the trusts created by this Indenture with respect
to one or more series of Securities, any of such Securities shall have been
authenticated but not delivered by the Trustee then in office, any successor
to
such Trustee may adopt the certificate of authentication of any predecessor
Trustee, and deliver such Securities so authenticated; and in case at that
time
any of the Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities
or
in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication
of
any predecessor Trustee or authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section
11.08 Right to
Rely on Officer’s Certificate. Subject to Section
11.02, and subject to the provisions of Section 16.01 with respect to the
certificates required thereby, whenever in the administration of the provisions
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering any action hereunder,
such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence, bad faith or willful misconduct
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officer’s Certificate with respect thereto delivered to the Trustee, and
such Officer’s Certificate, in the absence of negligence, bad faith or willful
misconduct on the part of the Trustee, shall be full warrant to the Trustee
for
any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
Section
11.09 Appointment
of Authenticating Agent. The Trustee may appoint an agent (the
“Authenticating Agent”) reasonably acceptable to the Company to authenticate the
Securities, and the Trustee shall give written notice of such appointment to
all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve. Unless limited by the terms of such appointment,
any such Authenticating Agent may authenticate Securities whenever the Trustee
may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by the Authenticating Agent. 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.
Each
Authenticating Agent shall at all times be a corporation organized and doing
business and in good standing under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or
examination
by Federal or State authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Article XI,
the combined capital and surplus of such corporation shall be deemed to be
its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Article XI, it shall resign
immediately in the manner and with the effect specified in this Article
XI.
Any
corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this Article
XI, without the execution or filing of any paper or any further act on the
part
of the Trustee or the Authenticating Agent.
An
Authenticating Agent may resign at any time by giving written notice thereof
to
the Trustee and to the Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 11.09, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions
of
this Section 11.09.
The
Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 11.09, and the Trustee shall
be
entitled to be reimbursed for such payments, subject to the provisions of
Section 11.01.
Section
11.10 Communications
by Securityholders with Other Securityholders. Holders of
Securities may communicate pursuant to Section 312(b) of the Trust Indenture
Act
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 Section 312(c) of the Trust Indenture Act with
respect to such communications.
ARTICLE
XII
SATISFACTION
AND DISCHARGE; DEFEASANCE
Section
12.01 Applicability
of Article. If, pursuant to Section 3.01, provision is made for
the defeasance of Securities of a series and if the Securities of such series
are denominated and payable only in U.S. Dollars (except as provided pursuant
to
Section 3.01), then the provisions of this Article shall be applicable except
as
otherwise specified pursuant to Section 3.01
for Securities of such series. Defeasance provisions, if any, for
Securities denominated in a Foreign Currency may be specified pursuant to
Section 3.01.
Section
12.02 Satisfaction
and Discharge of Indenture. This Indenture, with respect to the
Securities of any series (if all series issued under this Indenture are not
to
be affected), shall, upon Company Order, cease to be of further effect (except
as to any surviving rights of registration of transfer or exchange of such
Securities herein expressly provided for and rights to receive payments of
principal of and premium, if any, and interest on such Securities) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when,
(a) either:
(i) all
Securities of such series theretofore authenticated and delivered (other than
(A) Securities that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 3.07 and (B) Securities for whose
payment money has theretofore been deposited in trust or segregated and held
in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 6.03) have been delivered to the Trustee
for
cancellation; or
(ii) all
Securities of such series not theretofore delivered to the Trustee for
cancellation,
(A) have
become due and payable, or
(B) will
become due and payable at their Stated Maturity within one year, or
(C) are
to be called for redemption within one year under arrangements satisfactory
to
the Trustee for the giving of notice by the Trustee in the name, and at the
expense, of the Company, and the Company,
and
in the case of (A), (B) or (C) above, has deposited or caused to be deposited
with the Trustee or Paying Agent as trust funds in trust for the purpose an
amount in the Currency in which such Securities are denominated (except as
otherwise provided pursuant to Section 3.01) sufficient to pay and discharge
the
entire Indebtedness on such Securities for principal and premium, if any, and
interest to the date of such deposit (in the case of Securities that have become
due and payable) or to the Stated Maturity or Redemption Date, as the case
may
be; provided, however, in the event a petition for relief under federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or other similar law, is filed with
respect to the Company within 91 days after the deposit and the Trustee is
required to return the moneys then on deposit with the Trustee to the Company,
the obligations of the Company under this Indenture with respect to such
Securities shall not be deemed terminated or discharged;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture with respect to such series
have been complied with. Notwithstanding the satisfaction and
discharge of this Indenture, the obligations of the Company to the Trustee
under Section 11.01 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (a)(i) of this Section, the obligations
of
the Trustee under Section 12.07 and the last paragraph of Section 6.03(e) shall
survive.
Section
12.03 Defeasance
upon Deposit of Moneys or U.S Government Obligations. At the
Company’s option, either (a) the Company shall be deemed to have been Discharged
(as defined below) from its obligations with respect to Securities of any series
on the first day after the applicable conditions set forth below have been
satisfied or (b) the Company shall cease to be under any obligation to comply
with any term, provision or condition set forth in Section 6.04 with respect
to
Securities of any series (and, if so specified pursuant to Section 3.01, any
other restrictive covenant added for the benefit of such series pursuant to
Section 3.01) at any time after the applicable conditions set forth below have
been satisfied:
(a) The
Company shall have deposited or caused to be deposited irrevocably with the
Trustee as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such series
(i) money in an amount, or (ii) U.S. Government Obligations (as defined below)
that through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day before the
due
date of any payment, money in an amount, or (iii) a combination of (i) and
(ii), sufficient to pay and discharge each installment of principal (including
any mandatory sinking fund payments) of and premium, if any, and interest on,
the Outstanding Securities of such series on the dates such installments of
interest or principal and premium are due;
(b) No
Default with respect to the Securities of such series shall have occurred and
be
continuing on the date of such deposit (other than a Default resulting from
the
borrowing of funds and the grant of any related liens to be applied to such
deposit); and
(c) The
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that Holders of the Securities of such series will not recognize income, gain
or
loss for U.S. federal income tax purposes as a result of the Company’s exercise
of its option under this Section and will be subject to federal income tax
on
the same amounts and in the same manner and at the same times as would have
been
the case if such action had not been exercised and, in the case of the
Securities of such series being Discharged accompanied by a ruling to that
effect received from or published by the Internal Revenue Service.
“Discharged”
means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by, and obligations under, the Securities of such
series and to have satisfied all the obligations under this Indenture relating
to the Securities of such series (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except (A)
the rights of Holders of Securities of such series to receive, from the trust
fund described in clause (a) above, payment of the principal of and premium,
if
any, and interest on such Securities when such payments are due, (B) the
Company’s obligations with respect to Securities
of such series under Sections 3.04, 3.06, 3.07, 6.02, 12.06 and 12.07 and (C)
the rights, powers, trusts, duties and immunities of the Trustee
hereunder.
“U.S.
Government Obligations” means securities that are (i) direct obligations of the
United States 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 the timely of payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States, that, in either case under clauses (i) or (ii) are not callable or
redeemable at the action of the issuer thereof, and shall also include a
depositary receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on
or
principal of any such U.S. Government Obligation held by such custodian for
the
account of the holder of a depositary receipt; provided 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 U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by
such
depositary receipt.
Section
12.04 Repayment to
Company. The Trustee and any Paying Agent shall promptly pay to
the Company (or to its designee) upon Company Order any excess moneys or U.S.
Government Obligations held by them at any time, including any such moneys
or
obligations held by the Trustee under any escrow trust agreement entered into
pursuant to Section 12.06. The provisions of the last paragraph of
Section 6.03 shall apply to any money held by the Trustee or any Paying Agent
under this Article that remains unclaimed for two years after the Maturity
of
any series of Securities for which money or U.S. Government Obligations have
been deposited pursuant to Section 12.03.
Section
12.05 Indemnity
for U.S. Government Obligations. The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the deposited U.S. Government Obligations or the principal
or
interest received on such U.S. Government Obligations.
Section
12.06 Deposits to
Be Held in Escrow. Any deposits with the Trustee referred to in
Section 12.03 above shall be irrevocable (except to the extent provided in
Sections 12.04 and 12.07) and shall be made under the terms of an escrow trust
agreement. If any Outstanding Securities of a series are to be
redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory or optional sinking
fund requirement, the applicable escrow trust agreement shall provide therefor
and the Company shall make such arrangements as are satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company. The agreement shall provide that, upon
satisfaction of any mandatory sinking fund payment requirements, whether by
deposit of moneys, application of proceeds of deposited U.S. Government
Obligations or, if permitted, by delivery of Securities, the Trustee shall
pay
or deliver over to the Company as excess moneys pursuant to Section 12.04 all
funds or obligations then held under the agreement and allocable to the sinking
fund payment requirements so satisfied.
If
Securities of a series with respect to which such deposits are made may be
subject to later redemption at the option of the Company or pursuant to optional
sinking fund payments, the
applicable
escrow trust agreement may, at the option of the Company, provide
therefor. In the case of an optional redemption in whole or in part,
such agreement shall require the Company to deposit with the Trustee on or
before the date notice of redemption is given funds sufficient to pay the
Redemption Price of the Securities to be redeemed together with all unpaid
interest thereon to the Redemption Date. Upon such deposit of funds,
the Trustee shall pay or deliver over to the Company as excess funds pursuant
to
Section 12.04 all funds or obligations then held under such agreement and
allocable to the Securities to be redeemed. In the case of exercise
of optional sinking fund payment rights by the Company, such agreement shall,
at
the option of the Company, provide that upon deposit by the Company with the
Trustee of funds pursuant to such exercise the Trustee shall pay or deliver
over
to the Company as excess funds pursuant to Section 12.04 all funds or
obligations then held under such agreement for such series and allocable to
the
Securities to be redeemed.
Section
12.07 Application
of Trust Money.
(a) Neither
the Trustee nor any other paying agent shall be required to pay interest on
any
moneys deposited pursuant to the provisions of this Indenture, except such
as it
shall agree with the Company in writing to pay thereon. Any moneys so
deposited for the payment of the principal of, or premium, if any, or interest
on the Securities of any series and remaining unclaimed for two years after
the
date of the maturity of the Securities of such series or the date fixed for
the
redemption of all the Securities of such series at the time outstanding, as
the
case may be, shall be repaid by the Trustee or such other paying agent to the
Company upon its written request and thereafter, anything in this Indenture
to
the contrary notwithstanding, any rights of the Holders of Securities of
such series in respect of which such moneys shall have been deposited shall
be
enforceable only against the Company, and all liability of the Trustee or such
other paying agent with respect to such moneys shall thereafter
cease.
(b) Subject
to the provisions of the foregoing paragraph, any moneys which at any time
shall
be deposited by the Company or on its behalf with the Trustee or any other
paying agent for the purpose of paying the principal of, premium, if any, and
interest on any of the Securities shall be and are hereby assigned, transferred
and set over to the Trustee or such other paying agent in trust for the
respective Holders of the Securities for the purpose for which such moneys
shall
have been deposited; but such moneys need not be segregated from other funds
except to the extent required by law.
Section
12.08 Deposits of
Non-U.S. Currencies. Notwithstanding the foregoing provisions of
this Article, if the Securities of any series are payable in a Currency other
than U.S. Dollars, the Currency or the nature of the government obligations
to
be deposited with the Trustee under the foregoing provisions of this Article
shall be as set forth in the Officer’s Certificate or established in the
supplemental indenture under which the Securities of such series are
issued.
ARTICLE
XIII
IMMUNITY
OF CERTAIN PERSONS
Section
13.01 No Personal
Liability. No recourse shall be had for the payment of the
principal of, or the premium, if any, or interest on, any Security or for any
claim based thereon or otherwise in respect thereof or of the Indebtedness
represented thereby, or upon any obligation, covenant or agreement of this
Indenture, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue
of any constitutional provision, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly agreed and
understood that this Indenture and the Securities are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or
be
incurred by, any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, because of the
incurring of the Indebtedness hereby authorized or under or by reason of any
of
the obligations, covenants, promises or agreements contained in this Indenture
or in any of the Securities, or to be implied herefrom or therefrom, and that
all liability, if any, of that character against every such incorporator,
stockholder, officer and director is, by the acceptance of the Securities and
as
a condition of, and as part of the consideration for, the execution of this
Indenture and the issue of the Securities expressly waived and
released.
ARTICLE
XIV
SUPPLEMENTAL
INDENTURES
Section
14.01 Without
Consent of Securityholders. Except as otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities, the
Company and the Trustee, at any time and from time to time, may enter into
one
or more indentures supplemental hereto, in form satisfactory to the Trustee,
for
any one or more of or all the following purposes:
(a) to
add to the covenants and agreements of the Company, to be observed thereafter
and during the period, if any, in such supplemental indenture or indentures
expressed, and to add Events of Default, in each case for the protection or
benefit of the Holders of all or any series of the Securities (and if such
covenants, agreements and Events of Default are to be for the benefit of fewer
than all series of Securities, stating that such covenants, agreements and
Events of Default are expressly being included for the benefit of such series
as
shall be identified therein), or to surrender any right or power herein
conferred upon the Company;
(b) to
delete or modify any Events of Default with respect to all or any series of
the
Securities, the form and terms of which are being established pursuant to such
supplemental indenture as permitted in Section 3.01 (and, if any such Event
of
Default is applicable to fewer than all such series of the Securities,
specifying the series to which such Event of Default is applicable), and to
specify the rights and remedies of the Trustee and the Holders of such
Securities in connection therewith;
(c) to
add to or change any of the provisions of this Indenture to provide, change
or
eliminate any restrictions on the payment of principal of or premium, if any,
on
Securities; provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect;
(d) to
change or eliminate any of the provisions of this Indenture; provided that
any
such change or elimination shall become effective only when there is no
Outstanding Security of any series created prior to the execution of such
supplemental indenture that is entitled to the benefit of such provision and
as
to which such supplemental indenture would apply;
(e) to
evidence the succession of another corporation to the Company, or successive
successions, and the assumption by such successor of the covenants and
obligations of the Company contained in the Securities of one or more series
and
in this Indenture or any supplemental indenture;
(f) to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to one or more series of Securities and to add to or change
any of the provisions of this Indenture as shall be necessary for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant
to
the requirements of Section 11.06(c);
(g) to
secure any series of Securities;
(h) to
evidence any changes to this Indenture pursuant to Sections 11.05, 11.06 or
11.07 hereof as permitted by the terms thereof;
(i) to
cure any ambiguity or to correct or supplement any provision contained herein
or
in any indenture supplemental hereto which may be defective or inconsistent
with
any other provision contained herein or in any supplemental
indenture;
(j) to
add to or change or eliminate any provision of this Indenture as shall be
necessary or desirable in accordance with any amendments to the Trust Indenture
Act;
(k) to
add guarantors or co-obligors with respect to any series of
Securities;
(l) to
make any change in any series of Securities that does not adversely affect
in
any material respect the interests of the Holders of such
Securities;
(m) to
provide for uncertificated securities in addition to certificated
securities;
(n) to
supplement any of the provisions of this Indenture to such extent as shall
be
necessary to permit or facilitate the defeasance and discharge of any series
of
Securities; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series or any other series of
Securities;
(o) to
prohibit the authentication and delivery of additional series of Securities;
or
(p)
to establish the form and terms of Securities of any series as permitted in
Section 3.01, or to authorize the issuance of additional Securities of a series
previously authorized or to add to the conditions, limitations or restrictions
on the authorized amount, terms or purposes of issue, authentication or delivery
of the Securities of any series, as herein set forth, or other conditions,
limitations or restrictions thereafter to be observed.
Subject
to the provisions of Section 14.03, the Trustee is authorized to join with
the
Company in the execution of any such supplemental indenture, to make the further
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property or assets
thereunder.
Any
supplemental indenture authorized by the provisions of this Section 14.01 may
be
executed by the Company and the Trustee without the consent of the Holders
of
any of the Securities at the time Outstanding, notwithstanding any of the
provisions of Section 14.02.
Section
14.02 With Consent of
Securityholders; Limitations.
(a) With
the consent of the Holders (evidenced as provided in Article VIII) of a majority
in aggregate principal amount of the Outstanding Securities of each series
affected by such supplemental indenture voting separately, the Company and
the
Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to
or
changing in any manner or eliminating any provisions of this Indenture or of
modifying in any manner the rights of the Holders of the Securities of such
series to be affected; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
of each such series affected thereby,
(i) extend
the Stated Maturity of the principal of, or any installment of interest on,
any
Security, or reduce the principal amount thereof or the interest thereon or
any
premium payable upon redemption thereof, or extend the Stated Maturity of,
or
change the Currency in which the principal of and premium, if any, or interest
on such Security is denominated or payable, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section
7.02, or impair the right to institute suit for the enforcement of any payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or
after the Redemption Date), or materially adversely affect the economic terms
of
any right to convert or exchange any Security as may be provided pursuant to
Section 3.01; or
(ii) reduce
the percentage in principal amount of the Outstanding Securities of any series,
the consent of whose Holders is required for any supplemental indenture, or
the
consent of whose Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain Defaults hereunder and their
consequences provided for in this Indenture; or
(iii) modify
any of the provisions of this Section, Section 7.06 or Section 6.06, except
to
increase any such percentage or to provide that certain
other
provisions of this Indenture cannot be modified or waived without the consent
of
the Holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to “the Trustee” and concomitant changes in
this Section and Section 6.06, or the deletion of this proviso, in accordance
with the requirements of Sections 11.06 and 14.01(f); or
(iv) modify,
without the written consent of the Trustee, the rights, duties or immunities
of
the Trustee.
(b) A
supplemental indenture that changes or eliminates any provision of this
Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities or which modifies the rights of the Holders
of Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders
of
Securities of any other series.
(c) It
shall not be necessary for the consent of the Securityholders under this Section
14.02 to approve the particular form of any proposed supplemental indenture,
but
it shall be sufficient if such consent shall approve the substance
thereof.
(d) The
Company may set a record date for purposes of determining the identity of the
Holders of each series of Securities entitled to give a written consent or
waive
compliance by the Company as authorized or permitted by this
Section. Such record date shall not be more than 30 days prior to the
first solicitation of such consent or waiver or the date of the most recent
list
of Holders furnished to the Trustee prior to such solicitation pursuant to
Section 312 of the Trust Indenture Act.
(e) Promptly
after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section 14.02, the Company shall mail a
notice, setting forth in general terms the substance of such supplemental
indenture, to the Holders of Securities at their addresses as the same shall
then appear in the Register of the Company. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in
any
way impair or affect the validity of any such supplemental
indenture.
Section
14.03 Trustee
Protected
(a) Upon
the request of the Company, accompanied by the Officer’s Certificate and Opinion
of Counsel required by Section 16.01 stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and
evidence reasonably satisfactory to the Trustee of consent of the Holders if
the
supplemental indenture is to be executed pursuant to Section 14.02, the Trustee
shall join with the Company in the execution of said supplemental indenture
unless said supplemental indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may,
but
shall not be obligated to, enter into said supplemental
indenture. The Trustee shall be fully protected in relying upon such
Officer’s Certificate and an Opinion of Counsel.
Section
14.04 Effect of
Execution of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article XIV, this
Indenture shall be deemed to be modified and amended in accordance therewith
and, except as herein otherwise
expressly
provided, the respective rights, limitations of rights, obligations, duties
and
immunities under this Indenture of the Trustee, the Company and the Holders
of
all of the Securities or of the Securities of any series affected, as the case
may be, shall thereafter be determined, exercised and enforced hereunder subject
in all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be
part
of the terms and conditions of this Indenture for any and all
purposes.
Section
14.05 Notation on
or Exchange of Securities. Securities of any series authenticated
and delivered after the execution of any supplemental indenture pursuant to
the
provisions of this Article may bear a notation in the form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors of the Company, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by
the
Company and authenticated and delivered by the Trustee in exchange for the
Securities then Outstanding in equal aggregate principal amounts, and such
exchange shall be made without cost to the Holders of the
Securities.
Section
14.06 Conformity
with TIA. Every supplemental indenture executed pursuant to the
provisions of this Article shall conform to the requirements of the Trust
Indenture Act as then in effect.
ARTICLE
XV
SUBORDINATION
OF SECURITIES
Section
15.01 Agreement to
Subordinate. In the event a series of Securities is designated as
subordinated pursuant to Section 3.01, and except as otherwise provided in
a
Company Order or in one or more indentures supplemental hereto, the Company,
for
itself, its successors and assigns, covenants and agrees, and each Holder of
Securities of such series by his, her or its acceptance thereof, likewise
covenants and agrees, that the payment of the principal of (and premium, if
any)
and interest, if any, on each and all of the Securities of such series is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of all Senior
Indebtedness. In the event a series of Securities is not designated
as subordinated pursuant to Section 3.01(s), this Article XV shall have no
effect upon the Securities.
Section
15.02 Distribution
on Dissolution, Liquidation and Reorganization; Subrogation of Securities.
Subject to Section 15.01, upon any distribution of assets of the Company upon
any dissolution, winding up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, reorganization or receivership proceedings
or
upon an assignment for the benefit of creditors or any other marshalling of
the
assets and liabilities of the Company or otherwise (subject to the power of
a
court of competent jurisdiction to make other equitable provision reflecting
the
rights conferred in this Indenture upon the Senior Indebtedness and the holders
thereof with respect to the Securities and the holders thereof by a lawful
plan
of reorganization under applicable bankruptcy law):
(a) the
holders of all Senior Indebtedness shall be entitled to receive payment in
full
of the principal thereof (and premium, if any) and interest due thereon before
the Holders of the Securities are entitled to receive any payment upon the
principal (or premium, if any) or interest, if any, on Indebtedness evidenced
by
the Securities; and
(b) any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee would be entitled except for the provisions of this Article
XV
shall be paid by the liquidation trustee or agent or other Person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior Indebtedness
or their representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the principal of (and premium, if any) and
interest on the Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution to the holders
of
such Senior Indebtedness; and
(c) in
the event that, notwithstanding the foregoing, any payment or distribution
of
assets of the Company of any kind or character, whether in cash, property or
securities prohibited by the foregoing, shall be received by the Trustee or
the
Holders of the Securities before all Senior Indebtedness is paid in full, such
payment or distribution shall be paid over, upon written notice to a Responsible
Officer of the Trustee, to the holder of such Senior Indebtedness or his, her
or
its representative or representatives or to the trustee or trustees under any
indenture under which any instrument evidencing any of such Senior Indebtedness
may have been issued, ratably as aforesaid, as calculated by the Company, for
application to payment of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full, after giving effect
to
any concurrent payment or distribution to the holders of such Senior
Indebtedness.
(d) Subject
to the payment in full of all Senior Indebtedness, the Holders of the Securities
shall be subrogated to the rights of the holders of Senior Indebtedness (to
the
extent that distributions otherwise payable to such holder have been applied
to
the payment of Senior Indebtedness) to receive payments or distributions of
cash, property or securities of the Company applicable to Senior Indebtedness
until the principal of (and premium, if any) and interest, if any, on the
Securities shall be paid in full and no such payments or distributions to the
Holders of the Securities of cash, property or securities otherwise
distributable to the holders of Senior Indebtedness shall, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Securities be deemed to be a payment by the Company to or on
account of the Securities. It is understood that the provisions of this Article
XV are and are intended solely for the purpose of defining the relative rights
of the Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand. Nothing contained in this Article XV or
elsewhere in this Indenture or in the Securities is intended to or shall impair,
as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Securities, the obligation of the Company,
which is unconditional and absolute, to pay to the Holders of the Securities
the
principal of (and premium, if any) and interest, if any, on the Securities
as
and when the same shall become due and payable in accordance with their
terms,
or
to affect the relative rights of the Holders of the Securities and creditors
of
the Company other than the holders of Senior Indebtedness, nor shall anything
herein or in the Securities prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article XV
of
the holders of Senior Indebtedness in respect of cash, property or securities
of
the Company received upon the exercise of any such remedy. Upon any payment
or
distribution of assets of the Company referred to in this Article XV, the
Trustee, subject to the provisions of Section 15.05, shall be entitled to
conclusively rely upon a certificate of the liquidating trustee or agent or
other person making any distribution to the Trustee for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereof
and all other facts pertinent thereto or to this Article XV.
Section
15.03 No Payment
on Securities in Event of Default on Senior Indebtedness. Subject to Section
15.01, no payment by the Company on account of principal (or premium, if any),
sinking funds or interest, if any, on the Securities shall be made at anytime
if: (i) a default on Senior Indebtedness exists that permits the holders of
such
Senior Indebtedness to accelerate its maturity and (ii) the default is the
subject of judicial proceedings or the Company has received notice of such
default. The Company may resume payments on the Securities when full payment
of
amounts then due for principal (premium, if any), sinking funds and interest
on
Senior Indebtedness has been made or duly provided for in money or money’s
worth.
In
the event that, notwithstanding the foregoing, any payment shall be received
by
the Trustee when such payment is prohibited by the preceding paragraph of this
Section 15.03, such payment shall be held in trust for the benefit of, and
shall
be paid over or delivered to, the holders of such Senior Indebtedness or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Indebtedness may have been issued, as
their
respective interests may appear, as calculated by the Company, but only to
the
extent that the holders of such Senior Indebtedness (or their representative
or
representatives or a trustee) notify the Trustee in writing within 90 days
of
such payment of the amounts then due and owing on such Senior Indebtedness
and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of such Senior Indebtedness.
Section
15.04 Payments on
Securities Permitted. Subject to Section 15.01, nothing contained in this
Indenture or in any of the Securities shall (a) affect the obligation of the
Company to make, or prevent the Company from making, at any time except as
provided in Sections 15.02 and 15.03, payments of principal of (or premium,
if
any) or interest, if any, on the Securities or (b) prevent the application
by
the Trustee of any moneys or assets deposited with it hereunder to the payment
of or on account of the principal of (or premium, if any) or interest, if any,
on the Securities, unless a Responsible Officer of the Trustee shall have
received at its Corporate Trust Office written notice of any fact prohibiting
the making of such payment from the Company or from the holder of any Senior
Indebtedness or from the trustee for any such holder, together with proof
satisfactory to the Trustee of such holding of Senior Indebtedness or of the
authority of such trustee more than two Business Days prior to the date fixed
for such payment.
Section
15.05 Authorization
of Securityholders to Trustee to Effect Subordination. Subject to Section
15.01, each Holder of Securities by his acceptance thereof authorizes and
directs the Trustee on his, her or its behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article XV and appoints the Trustee his attorney-in-fact for any and all such
purposes.
Section
15.06 Notices to
Trustee. The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit
the
making of any payment of monies or assets to or by the Trustee in respect of
the
Securities of any series pursuant to the provisions of this Article
XV. Subject to Section 15.01, notwithstanding the provisions of this
Article XV or any other provisions of this Indenture, neither the Trustee nor
any Paying Agent (other than the Company) shall be charged with knowledge of
the
existence of any Senior Indebtedness or of any fact which would prohibit the
making of any payment of moneys or assets to or by the Trustee or such Paying
Agent, unless and until a Responsible Officer of the Trustee or such Paying
Agent shall have received (in the case of a Responsible Officer of the Trustee,
at the Corporate Trust Office of the Trustee) written notice thereof from the
Company or from the holder of any Senior Indebtedness or from the trustee for
any such holder, together with proof satisfactory to the Trustee of such holding
of Senior Indebtedness or of the authority of such trustee and, prior to the
receipt of any such written notice, the Trustee shall be entitled in all
respects conclusively to presume that no such facts exist; provided, however,
that if at least two Business Days prior to the date upon which by the terms
hereof any such moneys or assets may become payable for any purpose (including,
without limitation, the payment of either the principal (or premium, if any)
or
interest, if any, on any Security) a Responsible Officer of the Trustee shall
not have received with respect to such moneys or assets the notice provided
for
in this Section 15.06, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such
moneys or assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may
be
received by it within two Business Days prior to such date. The Trustee shall
be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such a notice has been given by a
holder of Senior Indebtedness or a trustee on behalf of any such holder. In
the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article XV, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights
of
such Person under this Article XV and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination
as
to the right of such Person to receive such payment.
Section
15.07 Trustee as
Holder of Senior Indebtedness. Subject to Section 15.01, the Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article XV in respect of any Senior Indebtedness at any time held by it to
the
same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as
such
holder. Nothing in this Article XV shall apply to claims of, or payments to,
the
Trustee under or pursuant to Sections 7.05 or 11.01.
Section
15.08 Modifications
of Terms of Senior Indebtedness. Subject to Section 15.01, any renewal or
extension of the time of payment of any Senior Indebtedness or the exercise
by
the holders of Senior Indebtedness of any of their rights under any instrument
creating or evidencing Senior Indebtedness, including, without limitation,
the
waiver of default thereunder, may be made or done all without notice to or
assent from the Holders of the Securities or the Trustee. No compromise,
alteration, amendment, modification, extension, renewal or other change of,
or
waiver, consent or other action in respect of, any liability or obligation
under
or in respect of, or of any of the terms, covenants or conditions of any
indenture or other instrument under which any Senior Indebtedness is outstanding
or of such Senior Indebtedness, whether or not such release is in accordance
with the provisions of any applicable document, shall in any way alter or affect
any of the provisions of this Article XV or of the Securities relating to the
subordination thereof.
Section
15.09 Reliance
on Judicial Order or Certificate of Liquidating Agent. Subject to
Section 15.01, upon any payment or distribution of assets of the Company
referred to in this Article XV, the Trustee and the Holders of the Securities
shall be entitled to conclusively rely upon any order or decree entered by
any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders
of
Senior Indebtedness and other indebtedness of the Company, the amount thereof
or
payable thereon, the amount or amounts paid or distributed thereon and all
other
facts pertinent thereto or to this Article XV.
Section
15.10 Satisfaction
and Discharge; Defeasance and Covenant Defeasance. Subject to Section 15.01,
amounts and U.S. Government Obligations deposited in trust with the Trustee
pursuant to and in accordance with Article XII and not, at the time of such
deposit, prohibited to be deposited under Sections 15.02 or 15.03 shall not
be
subject to this Article XV.
Section
15.11 Trustee Not
Fiduciary for Holders of Senior Indebtedness. With respect to the
holders of Senior Indebtedness, the Trustee undertakes to perform or observe
only such of its covenants and obligations as are specifically set forth in
this
Article XV, and no implied covenants or obligations with respect to the holders
of Senior Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness. The Trustee shall not be liable
to any such holder if it shall pay over or distribute to or on behalf of Holders
of Securities or the Company, or any other Person, moneys or assets to which
any
holder of Senior Indebtedness shall be entitled by virtue of this Article XV
or
otherwise.
ARTICLE
XVI
MISCELLANEOUS
PROVISIONS
Section
16.01 Certificates
and Opinions as to Conditions Precedent.
(a) Upon
any request or application by the Company to the Trustee to take any action
under any of the provisions of this Indenture, the Company shall furnish to
the
Trustee an Officer’s 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 have been complied with, except that
in
the case of any such application or demand as to which the furnishing of such
document is specifically required by any provision of this Indenture relating
to
such particular application or demand, no additional certificate or opinion
need
be furnished.
(b) Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for
in
this Indenture shall include (i) a statement that the Person giving such
certificate or opinion has read such covenant or condition; (ii) 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; (iii) a statement that, in the view or opinion of such Person, he or
she
has made such examination or investigation as is necessary to enable such Person
to express an informed view or opinion as to whether or not such covenant or
condition has been complied with; and (iv) a statement as to whether or not,
in
the view or opinion of such Person, such condition or covenant has been
complied with.
(c) Any
certificate, statement or opinion of an 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 or opinion or representations
with respect to the matters upon which his or her certificate, statement or
opinion is based are erroneous. Any certificate, statement or opinion
of counsel may be based, insofar as it relates to factual matters, upon a
certificate, statement 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, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate,
statement or opinion or representations with respect to such matters are
erroneous.
(d) Any
certificate, statement or opinion of an officer of the Company or of counsel
to
the Company may be based, insofar as it relates to accounting matters, upon
a
certificate or opinion of, or representations by, an accountant or firm of
accountants, unless such officer or counsel, as the case may be, knows, or
in
the exercise of reasonable care should know, that the certificate or opinion
or
representations with respect to the accounting matters upon which his or her
certificate, statement or opinion may be based are erroneous. Any
certificate or opinion of any firm of independent registered public accountants
filed with the Trustee shall contain a statement that such firm is
independent.
(e) 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.
(f) 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.
Section
16.02 Trust
Indenture Act Controls. If and to the extent that any provision
of this Indenture limits, qualifies or conflicts with the duties imposed by,
or
another provision included in this Indenture which is required to be included
in
this Indenture by any of the provisions of Sections 310 to 318, inclusive,
of
the Trust Indenture Act, such imposed duties or incorporated provision shall
control.
Section
16.03 Notices to
the Company and Trustee. Any notice or demand authorized by this
Indenture to be made upon, given or furnished to, or filed with, the Company
or
the Trustee shall be sufficiently made, given, furnished or filed for all
purposes if it shall be mailed, delivered or telefaxed to:
(a) the
Company, at 2366 Bernville Road, Reading, Pennsylvania 19605, Attention: General
Counsel, Facsimile No.: (610) 208-1807 or at such other address or facsimile
number as may have been furnished in writing to the Trustee by the
Company.
(b) the
Trustee, at the Corporate Trust Office of the Trustee, Attention: Corporate
Trust Administration.
Any
such notice, demand or other document shall be in the English
language.
Section
16.04 Notices to
Securityholders; Waiver. Any notice required or permitted to be
given to Securityholders shall be sufficiently given (unless otherwise herein
expressly provided),
(a) if
to Holders, if given in writing by first class mail, postage prepaid, to such
Holders at their addresses as the same shall appear on the Register of the
Company.
(b) In
the event of suspension of regular mail service or by reason of any other cause
it shall be impracticable to give notice by mail, then such notification as
shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
(c) 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 the Trustee,
but such filing shall not be a condition precedent to the validity of any action
taken in reliance on such waiver. 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, and any notice that is mailed in the manner herein provided
shall
be conclusively presumed to have been duly given. In any case where
notice to Holders is given by publication, any defect in any notice so published
as to any particular Holder shall not affect the sufficiency of such notice
with
respect to other Holders, and any notice that is published in the manner herein
provided shall be conclusively presumed to have been duly given.
Section
16.05 Legal
Holiday. Unless otherwise specified pursuant to Section 3.01, in
any case where any Interest Payment Date, Redemption Date or Maturity of any
Security of any series shall not be a Business Day at any Place of Payment
for
the Securities of that series, then payment of principal and premium, if any,
or
interest need not be made at such Place of Payment on such date, but may be
made
on the next succeeding Business Day at such Place of Payment with the same
force
and effect as if made on such Interest Payment Date, Redemption Date or Maturity
and no interest shall accrue on such payment for the period from and after
such
Interest Payment Date, Redemption Date or Maturity, as the case may be, to
such
Business Day if such payment is made or duly provided for on such Business
Day.
Section
16.06 Effects of
Headings and Table of Contents. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
Section
16.07 Successors
and Assigns. All covenants and agreements in this Indenture by
the parties hereto shall bind their respective successors and assigns and inure
to the benefit of their permitted successors and assigns, whether so expressed
or not.
Section
16.08 Separability
Clause. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section
16.09 Benefits of
Indenture. Nothing in this Indenture expressed and nothing that
may be implied from any of the provisions hereof is intended, or shall be
construed, to confer upon, or to give to, any Person or corporation other than
the parties hereto and their successors and the Holders of the Securities any
benefit or any right, remedy or claim under or by reason of this Indenture
or
any covenant, condition, stipulation, promise or agreement hereof, and all
covenants, conditions, stipulations, promises and agreements in this Indenture
contained shall be for the sole and exclusive benefit of the parties hereto
and
their successors and of the Holders of the Securities.
Section
16.10 Counterparts
Originals. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original,
but
all such counterparts shall together constitute but one and the same
instrument.
Section
16.11 Governing
Law; Waiver of Trial by Jury. This Indenture and the Securities
shall be deemed to be contracts made under the law of the State of New York,
and
for all purposes shall be governed by and construed in accordance with the
law
of said State.
EACH
PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.
IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly executed
as
of the date first written above.
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ENERSYS,
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By:
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Name:
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Title:
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WILMINGTON
TRUST COMPANY, as
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Trustee
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By:
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ens_exh5-1.htm
Exhibit
5.1
November
21, 2007
Skadden,
Arps, Slate, Meagher & Flom LLP
Four
Times Square
New
York, New York 10036-6522
EnerSys
2366
Bernville Road
Reading,
Pennsylvania 19605
Re: EnerSys
Registration Statement on Form S-3
Ladies
and Gentlemen:
We
have acted as special counsel to
EnerSys, a Delaware corporation (the "Company"), in connection with the
Registration Statement on Form S-3, as amended by Amendment No. 1 thereto
(the
"Registration Statement"), under the Securities Act of 1933, as amended (the
"Securities Act"), to be filed on the date hereof by the Company with the
Securities and Exchange Commission (the "Commission"). The Registration
Statement relates to the issuance and sale from time to time, pursuant to
Rule
415 of the General Rules and Regulations promulgated under the Securities
Act,
of the following securities of the Company with an aggregate public offering
price of up to $500,000,000 or the equivalent thereof, based on the applicable
exchange rate at the time of sale, in one or more foreign currencies, currency
units or composite currencies as shall be designated by the Company: (i)
shares
of the Company's common stock ("Common Stock"), par value $0.01 per share,
to be
sold by the Company (the "Primary Shares"), (ii) up to 22,202,332 shares
of
Common Stock to be sold by certain stockholders of the Company consisting
of (a)
currently outstanding shares of the Company's Common Stock (the
"Secondary Shares") and (b) shares of Common Stock to be issued upon exercise
of
options to purchase Common Stock (the "Secondary Option Shares") and
(iii)
senior or subordinated debt securities ("Debt Securities") of the Company,
which
may be issued in one or more series under the indenture (the "Indenture")
proposed to be entered into between the Company and Wilmington Trust Company,
as
trustee. The Primary Shares, the Secondary Shares, the Secondary Option Shares
and the Debt Securities are collectively referred to herein as the "Offered
Securities."
This
opinion is being furnished in
accordance with the requirements of Item 601(b)(5) of Regulation S-K under
the
Securities Act.
In
rendering the opinions set forth herein, we have examined and relied on
originals or copies of: (i) the Registration Statement relating to the Offered
Securities; (ii) the Certificate of Incorporation of the Company, as amended
to
date and as certified by the Secretary of State of the State of Delaware
(the
"Certificate of Incorporation"); (iii) the By-laws of the Company, as amended
to
date and as certified by the Secretary of the Company (the "By-Laws");
(iv)
certain resolutions of the Board of Directors of the Company (the "Board
of
Directors") relating to the Secondary Shares, the Secondary Option Shares
and
related matters; (v) certain resolutions of the Compensation Committee of
the
Board of Directors of the Company relating to the Secondary Option Shares
and
related matters; (vi) certain resolutions of the Board of Directors relating
to
the registration and offering of the Offered Securities; (vii) the 2004
Securityholder Agreement dated as of July 26, 2004, among Metalmark Capital
LLC,
and certain other institutional stockholders, certain members of the Company's
senior management and the Company, which governs certain relationships among
such parties; (viii) the management equity plan established by Company in
2000
(the "Company Stock Incentive Plan"); (ix) a form of Stock Option Agreement
pursuant to the Company Stock Incentive Plan; (x) the form of Indenture;
and
(xi) the Form T-1 of the Trustee filed as an exhibit to the Registration
Statement. We also have examined originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company
and
such agreements, certificates and receipts of public officials, certificates
of
officers or other representatives of the Company and others, and such other
documents as we have deemed necessary or appropriate as a basis for the opinions
set forth herein.
In
our examination, we have assumed the legal capacity of all natural persons,
the
genuineness of all signatures, the authenticity of all documents submitted
to us
as originals, the conformity to original documents of all documents submitted
to
us as facsimile, electronic, certified or photostatic copies, and the
authenticity of the originals of such copies. In making our examination of
executed documents, we have assumed that the parties thereto, other than
the
Company, its directors and officers, had the power, corporate or other, to
enter
into and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and the execution
and
delivery by such parties of such documents and the validity and binding effect
thereof on such parties. In rendering the opinion set forth below, we
have assumed that the Company has received the entire amount of the
consideration contemplated by the resolutions of the Board of Directors of
the
Company authorizing the issuance of any Primary or Secondary Shares and that
the
certificates evidencing such shares as originally issued conform to the
specimen. As to any facts material to the opinions expressed herein
that we did not independently establish or verify, we have relied upon
statements and representations of officers and other representatives of the
Company and others and of public officials.
We
have assumed that the terms of the Securities will have been established
so as
not to, and that the execution and delivery by the Company of, and the
performance of its obligations under, the Securities, will not, violate,
conflict with or constitute a default under (i) any agreement or instrument
to
which the Company is subject, (ii) any law, rule or regulation to which the
Company is subject, (iii) any judicial or regulatory order or decree of any
governmental authority or (iv) any consent, approval, license, authorization
or
validation of, or filing, recording or registration with any governmental
authority. We have also assumed that the Indenture will be executed and
delivered in substantially the form reviewed by us. As to any facts
material to the opinions expressed herein that we did not independently
establish or verify, we have relied upon statements and representations of
officers and other representatives of the Company and others.
Our
opinions set forth herein are limited to Delaware corporate law and the laws
of
the State of New York that, in our experience, are normally applicable to
transactions of the type contemplated by the Registration Statement and,
to the
extent that judicial or regulatory orders or decrees or consents, approvals,
licenses, authorizations, validations, filings, recordings or registrations
with
governmental authorities are relevant, to those required under such laws
(all of
the foregoing being referred to as "Opined on Law"). We do not express any
opinion with respect to the law of any jurisdiction other than Opined on
Law or
as to the effect of any such non-Opined on Law on the opinions herein
stated. Insofar as the opinions expressed herein relate to matters
governed by laws other than Opined on Law, we have assumed, without having
made
independent investigation, that such laws do not affect any of the opinions
set
forth herein. The Offered Securities may be issued from time to time
on a delayed or continuous basis, and this opinion is limited to the laws,
including the rules and regulations, as in effect on the date hereof, which
laws
are subject to change with possible retroactive effect.
Based
upon and subject to the foregoing, we are of the opinion that:
1. With
respect to any Primary Shares to be offered by the Company pursuant to the
Registration Statement (the "Offered Primary Shares"), when (i) the Registration
Statement, as finally amended (including all necessary post-effective
amendments), has become effective under the Securities Act, (ii) an appropriate
prospectus supplement with respect to the Offered Primary Shares has been
prepared, delivered and filed in compliance with the Securities Act and the
applicable rules and regulations thereunder, (iii) if the Offered Primary
Shares
are to be sold pursuant to a firm commitment underwritten offering, the
underwriting agreement with respect to the Offered Primary Shares has been
duly
authorized, executed and delivered by the Company and the other parties thereto,
(iv) the Board of Directors, including any appropriate committee appointed
thereby, and appropriate officers of the Company have taken all necessary
corporate action to approve the issuance of the Offered Primary Shares, the
consideration to be received therefor and related matters, (v) the terms
of the
issuance and sale of the Offered Primary Shares have been duly established
in
conformity with the Articles of Incorporation and the By-Laws so as not to
violate any applicable law, the Articles of Incorporation or the By-Laws
or
result in a default under or breach of any agreement or instrument binding
upon
the Company and so as to comply with any requirement or restriction imposed
by
any court or governmental body having jurisdiction over the Company and (vi)
certificates in the form required under the laws of the State of Delaware
representing the Offered Primary Shares are duly executed, countersigned,
registered and delivered upon payment of the agreed upon consideration therefor,
the Offered Primary Shares (including any shares of Common Stock duly issued
upon conversion of any Debt Securities registered on the Registration
Statement), when issued and sold in accordance with the applicable underwriting
agreement with respect to the Offered Primary Shares or any other duly
authorized, executed and delivered valid and binding purchase or agency
agreement, will be duly authorized, validly issued, fully paid and
nonassessable, provided that the consideration therefor is not less than
$0.01
per share of Common Stock.
2. With
respect to any Secondary Shares to be offered by certain selling stockholders
pursuant to the Registration Statement, such Secondary Shares have been duly
authorized and validly issued and are fully paid and nonassessable.
3. With
respect to any Secondary Option Shares to be offered by certain selling
stockholders pursuant to the Registration Statement, such Secondary Option
Shares have been duly authorized and when issued upon the exercise of
outstanding options to purchase Common Stock granted pursuant to the Company
Stock Incentive Plan and payment of the exercise price set forth in the
applicable Stock Option Agreement with respect to such options, the Secondary
Option Shares will be validly issued, fully paid and nonassessable.
4. With
respect to any series of Debt Securities to be offered by the Company pursuant
to the Registration Statement (the "Offered Debt Securities"), when (i) the
Registration Statement, as finally amended (including all necessary
post-effective amendments), has become effective under the Securities Act
and
the Indenture has been qualified under the Trust Indenture Act of 1939, as
amended, (ii) an appropriate prospectus supplement with respect to the Offered
Debt Securities has been prepared, delivered and filed in compliance with
the
Securities Act and the applicable rules and regulations thereunder, (iii)
if the
Offered Debt Securities are to be sold pursuant to a firm commitment
underwritten offering, the underwriting agreement with respect to the Offered
Debt Securities has been duly authorized, executed and delivered by the Company
and the other parties thereto, (iv) the Board of Directors, including any
appropriate committee appointed thereby, and appropriate officers of the
Company
have taken all necessary corporate action to approve the issuance and terms
of
the Offered Debt Securities and related matters, (v) the Indenture and any
supplemental indenture in respect of such Offered Debt Securities have been
duly
executed and delivered by each party thereto, (vi) the terms of the Offered
Debt
Securities and of their issuance and sale have been duly established in
conformity with the Indenture and any supplemental indenture to be entered
into
in connection with the issuance of such Offered Debt Securities, so as not
to
violate any applicable law, the Articles of Incorporation or the By-Laws
or
result in a default under or breach of any agreement or instrument binding
upon
the Company and so as to comply with any requirement or restriction imposed
by
any court or governmental body having jurisdiction over the Company, and
(vii)
the Offered Debt Securities have been issued in a form that complies with
the
Indenture and have been duly executed and authenticated in accordance with
the
provisions of the Indenture and any supplemental indenture to be entered
into in
connection with the issuance of such Offered Debt Securities and duly delivered
to the purchasers thereof upon payment of the agreed-upon consideration
therefor, the Offered Debt Securities (including any Debt Securities duly
issued
upon conversion of any Debt Securities), when issued and sold in accordance
with
the Indenture, any supplemental indenture to be entered into in connection
with
the issuance of such Offered Debt Securities and the applicable underwriting
agreement, if any, or any other duly authorized, executed and delivered valid
and binding purchase or agency agreement, will be valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, except to the extent that enforcement thereof may be limited
by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to creditors’ rights
generally, (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity), (c) public
policy considerations which may limit the rights of parties to obtain remedies
and (d) the waivers of any usury defense contained in the Indenture or Offered
Debt Securities that may be unenforceable.
We
hereby consent to the filing of this opinion with the Commission as an exhibit
to the Registration Statement. We also consent to the reference to our firm
under the caption "Legal Matters" in the prospectus included in the Registration
Statement. In giving this consent, we do not thereby admit that we are included
in the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission.
Very
truly yours,
/s/
Skadden, Arps, Slate, Meagher & Flom LLP
5
ens_exh25-1.htm
Exhibit
25.1
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
T-1
STATEMENT
OF ELIGIBILITY
UNDER
THE TRUST INDENTURE ACT OF 1939
OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check
if an Application to Determine Eligibility of a Trustee Pursuant to Section
305(b)(2) __
WILMINGTON
TRUST COMPANY
(Exact
name of Trustee as specified in its charter)
Delaware
|
51-0055023
|
(Jurisdiction
of incorporation of organization if not a U.S. national bank)
|
(I.R.S.
Employer Identification No.)
|
1100
North Market Street
Wilmington,
Delaware 19890-0001
(302)
651-1000
(Address
of principal executive offices, including zip code)
Michael
A. DiGregorio
Senior
Vice President and General Counsel
Wilmington
Trust Company
1100
North Market Street
Wilmington,
Delaware 19890-0001
(302)
651-8793
(Name,
address, including zip code, and telephone number, including area code, of
agent
of service)
EnerSys
(Exact
name of obligor as specified in its charter)
|
|
Delaware
|
23-3058564
|
(State
or other jurisdiction or incorporation or organization)
|
(I.R.S.
Employer Identification No.)
|
2366
Bernville Road
Reading,
PA 19605
(Address
of principal executive offices, including zip code)
______________________
Debt
Securities
ITEM
1. GENERAL INFORMATION.
Furnish
the following information as to the trustee:
|
(a)
|
Name
and address of each examining or supervising authority to which it
is
subject.
|
|
Federal
Reserve Bank of Philadelphia |
State
Bank Commissioner |
|
|
Ten
Independence Mall |
555
East Loockerman Street, Suite 210 |
|
|
Philadelphia,
PA 19106-1574 |
Dover,
Delaware 19901 |
|
|
(b)
|
Whether
it is authorized to exercise corporate trust
powers.
|
|
The
trustee is authorized to exercise corporate trust
powers.
|
ITEM
2. AFFILIATIONS WITH THE OBLIGOR.
If
the obligor is an affiliate of the trustee, describe each
affiliation:
Based
upon an examination of the books and records of the trustee and information
available to the trustee, the obligor is not an affiliate of the
trustee.
ITEM
16. LIST OF EXHIBITS.
List
below all exhibits filed as part of this Statement of Eligibility and
Qualification.
|
·
|
A
copy of the Charter of Wilmington Trust Company (Exhibit 1), which
includes the certificate of authority of Wilmington Trust Company
to
commence business (Exhibit 2) and the authorization of Wilmington
Trust
Company to exercise corporate trust powers (Exhibit
3).
|
|
·
|
A
copy of the existing By-Laws of Wilmington Trust Company (Exhibit
4).
|
|
·
|
Consent
of Wilmington Trust Company required by Section 321(b) of the Trust
Indenture Act (Exhibit 6).
|
|
·
|
A
copy of the latest Report of Condition of Wilmington Trust Company
(Exhibit 7).
|
Pursuant
to the requirements of the Trust Indenture Act of 1939, as amended, the trustee,
Wilmington Trust Company, a corporation organized and existing under the laws
of
Delaware, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Wilmington and State of Delaware on the 21st day of November,
2007.
[SEAL]
|
|
WILMINGTON
TRUST COMPANY
|
|
|
|
|
|
|
|
|
|
|
|
Attest:
|
/s/
Geoffrey Lewis
|
By:
|
/s/
Denise Geran
|
|
|
Assistant
Secretary
|
Name:
|
Denise
Geran
|
|
|
|
Title:
|
Vice
President
|
|
|
|
|
|
|
EXHIBIT
1*
AMENDED
CHARTER
Wilmington
Trust Company
Wilmington,
Delaware
As
existing on May 9, 1987
*Exhibit
1 also constitutes Exhibits 2 and 3.
Amended
Charter
or
Act
of Incorporation
of
Wilmington
Trust Company
Wilmington
Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of
which
company was changed to "Wilmington Trust Company" by an
amendment filed in the Office of the Secretary of State on March 18, A.D. 1903,
and the Charter or Act of Incorporation of which company has been from time
to
time amended and changed by merger agreements pursuant to the corporation law
for state banks and trust companies of the State of Delaware, does hereby alter
and amend its Charter or Act of Incorporation so that the same as so altered
and
amended shall in its entirety read as follows:
First:
- The name of this corporation is Wilmington
TrustCompany.
Second:
- The location of its principal office in the State of Delaware is at Rodney
Square North, in the City of Wilmington, County of New Castle; the name of
its
resident agent is Wilmington Trust Company whose address is
Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the City
of Newark, New Castle County, Delaware, the Town of Newport, New Castle County,
Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County, Delaware, and
shall be empowered to open, maintain and operate branch offices at Ninth and
Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605 Market
Street, all in the City of Wilmington, New Castle County, Delaware, and such
other branch offices or places of business as may be authorized from time to
time by the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
Third:
- (a) The nature of the business and the objects and purposes proposed to be
transacted, promoted or carried on by this Corporation are to do any or all
of
the things herein mentioned as fully and to the same extent as natural persons
might or could do and in any part of the world, viz.:
|
(1)
|
To
sue and be sued, complain and defend in any Court of law or equity
and to
make and use a common seal, and alter the seal at pleasure, to hold,
purchase, convey, mortgage or otherwise deal in real and personal
estate
and property, and to appoint such officers and agents as the business
of
the Corporation shall require, to make by-laws not inconsistent with
the
Constitution or laws of the United States or of this State, to discount
bills, notes or other evidences of debt, to receive deposits of money,
or
securities for money, to buy gold and silver bullion and foreign
coins, to
buy and sell bills of exchange, and generally to use, exercise and
enjoy
all the powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the transaction of
the
business of the Corporation hereby
created.
|
|
(2)
|
To
insure titles to real and personal property, or any estate or interests
therein, and
|
|
to
guarantee the holder of such property, real or personal, against
any claim
or claims, adverse to his interest therein, and to prepare and give
certificates of title for any lands or premises in the State of Delaware,
or elsewhere.
|
|
(3)
|
To
act as factor, agent, broker or attorney in the receipt, collection,
custody, investment and management of funds, and the purchase, sale,
management and disposal of property of all descriptions, and to prepare
and execute all papers which may be necessary or proper in such
business.
|
|
(4)
|
To
prepare and draw agreements, contracts, deeds, leases, conveyances,
mortgages, bonds and legal papers of every description, and to carry
on
the business of conveyancing in all its
branches.
|
|
(5)
|
To
receive upon deposit for safekeeping money, jewelry, plate, deeds,
bonds
and any and all other personal property of every sort and kind, from
executors, administrators, guardians, public officers, courts, receivers,
assignees, trustees, and from all fiduciaries, and from all other
persons
and individuals, and from all corporations whether state, municipal,
corporate or private, and to rent boxes, safes, vaults and other
receptacles for such property.
|
|
(6)
|
To
act as agent or otherwise for the purpose of registering, issuing,
certificating, countersigning, transferring or underwriting the stock,
bonds or other obligations of any corporation, association, state
or
municipality, and may receive and manage any sinking fund therefor
on such
terms as may be agreed upon between the two parties, and in like
manner
may act as Treasurer of any corporation or
municipality.
|
|
(7)
|
To
act as Trustee under any deed of trust, mortgage, bond or other instrument
issued by any state, municipality, body politic, corporation, association
or person, either alone or in conjunction with any other person or
persons, corporation or
corporations.
|
|
(8)
|
To
guarantee the validity, performance or effect of any contract or
agreement, and the fidelity of persons holding places of responsibility
or
trust; to become surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or agreement, either
by
itself or in conjunction with any other person, or persons, corporation,
or corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be
entered
in any court of record within the State of Delaware or elsewhere,
or which
may now or hereafter be required by any law, judge, officer or court
in
the State of Delaware or elsewhere.
|
|
(9)
|
To
act by any and every method of appointment as trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in
the
receiving, holding, managing, and disposing of any and all estates
and
property, real, personal or mixed, and to be appointed as such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any
persons,
|
|
corporations,
court, officer, or authority, in the State of Delaware or elsewhere;
and
whenever this Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in bankruptcy,
receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required
to give
bond with surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it by such
appointment.
|
|
(10)
|
And
for its care, management and trouble, and the exercise of any of
its
powers hereby given, or for the performance of any of the duties
which it
may undertake or be called upon to perform, or for the assumption
of any
responsibility the said Corporation may be entitled to receive a
proper
compensation.
|
|
(11)
|
To
purchase, receive, hold and own bonds, mortgages, debentures, shares
of
capital stock, and other securities, obligations, contracts and evidences
of indebtedness, of any private, public or municipal corporation
within
and without the State of Delaware, or of the Government of the United
States, or of any state, territory, colony, or possession thereof,
or of
any foreign government or country; to receive, collect, receipt for,
and
dispose of interest, dividends and income upon and from any of the
bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property
held
and owned by it, and to exercise in respect of all such bonds, mortgages,
debentures, notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all the
rights, powers and privileges of individual owners thereof, including
the
right to vote thereon; to invest and deal in and with any of the
moneys of
the Corporation upon such securities and in such manner as it may
think
fit and proper, and from time to time to vary or realize such investments;
to issue bonds and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the property held or
owned
by the Corporation, and to sell and pledge such bonds, as and when
the
Board of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by
law, to
lease, purchase, hold, sell, assign, transfer, pledge, mortgage and
convey
real and personal property of any name and nature and any estate
or
interest therein.
|
(b) In
furtherance of, and not in limitation, of the powers conferred by the laws of
the State of Delaware, it is hereby expressly provided that the said Corporation
shall also have the following powers:
|
(1)
|
To
do any or all of the things herein set forth, to the same extent
as
natural persons might or could do, and in any part of the
world.
|
|
(2)
|
To
acquire the good will, rights, property and franchises and to undertake
the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same
in cash,
stock of this Corporation, bonds or otherwise; to hold or in any
manner to
dispose of the whole or any part of the property so purchased; to
conduct
in any lawful manner the whole or any part of any business so acquired,
and to exercise all the powers necessary or convenient in
and about the conduct and management of such
business.
|
|
(3)
|
To
take, hold, own, deal in, mortgage or otherwise lien, and to lease,
sell,
exchange, transfer, or in any manner whatever dispose of property,
real,
personal or mixed, wherever
situated.
|
|
(4)
|
To
enter into, make, perform and carry out contracts of every kind with
any
person, firm, association or corporation, and, without limit as to
amount,
to draw, make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants, bonds, debentures,
and other negotiable or transferable
instruments.
|
|
(5)
|
To
have one or more offices, to carry on all or any of its operations
and
businesses, without restriction to the same extent as natural persons
might or could do, to purchase or otherwise acquire, to hold, own,
to
mortgage, sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State, District,
Territory or Colony of the United States, and in any foreign country
or
place.
|
|
(6)
|
It
is the intention that the objects, purposes and powers specified
and
clauses contained in this paragraph shall (except where otherwise
expressed in said paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of this or any
other
paragraph in this charter, but that the objects, purposes and powers
specified in each of the clauses of this paragraph shall be regarded
as
independent objects, purposes and
powers.
|
Fourth:
- (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
|
(1)
|
One
million (1,000,000) shares of Preferred stock, par value $10.00 per
share
(hereinafter referred to as "Preferred Stock");
and
|
|
(2)
|
Forty
million (40,000,000) shares of Common Stock, par value $1.00 per
share
(hereinafter referred to as "Common
Stock").
|
(b) Shares
of Preferred Stock may be issued from time to time in one or more series as
may
from time to time be determined by the Board of Directors each of said series
to
be distinctly designated. All shares of any one series of Preferred
Stock shall be alike in every particular, except that there may be different
dates from which dividends, if any, thereon shall be cumulative, if made
cumulative. The voting powers and the preferences and relative,
participating, optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and, subject to
the
provisions of subparagraph 1 of Paragraph (c) of this Article
Fourth, the Board of Directors of the Corporation is hereby
expressly granted authority to fix by resolution or resolutions adopted prior
to
the issuance of any shares of a particular series of Preferred Stock, the voting
powers and the designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and restrictions of such
series, including, but without limiting the generality of the foregoing, the
following:
|
(1)
|
The
distinctive designation of, and the number of shares of Preferred
Stock
which shall constitute such series, which number may be increased
(except
where otherwise provided by the Board of Directors) or decreased
(but not
below the number of shares thereof then outstanding) from time to
time by
like action of the Board of
Directors;
|
|
(2)
|
The
rate and times at which, and the terms and conditions on which, dividends,
if any, on Preferred Stock of such series shall be paid, the extent
of the
preference or relation, if any, of such dividends to the dividends
payable
on any other class or classes, or series of the same or other class
of
stock and whether such dividends shall be cumulative or
non-cumulative;
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(3)
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The
right, if any, of the holders of Preferred Stock of such series to
convert
the same into or exchange the same for, shares of any other class
or
classes or of any series of the same or any other class or classes
of
stock of the Corporation and the terms and conditions of such conversion
or exchange;
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(4)
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Whether
or not Preferred Stock of such series shall be subject to redemption,
and
the redemption price or prices and the time or times at which, and
the
terms and conditions on which, Preferred Stock of such series may
be
redeemed.
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(5)
|
The
rights, if any, of the holders of Preferred Stock of such series
upon the
voluntary or involuntary liquidation, merger, consolidation, distribution
or sale of assets, dissolution or winding-up, of the
Corporation.
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(6)
|
The
terms of the sinking fund or redemption or purchase account, if any,
to be
provided for the Preferred Stock of such series;
and
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(7)
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The
voting powers, if any, of the holders of such series of Preferred
Stock
which may, without limiting the generality of the foregoing include
the
right, voting as a series or by itself or together with other series
of
Preferred Stock or all series of Preferred Stock as a class, to elect
one
or more directors of the Corporation if there shall have been a default
in
the payment of dividends on any one or more series of Preferred Stock
or
under such circumstances and on such conditions as the Board of Directors
may determine.
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(c) (1)
|
After
the requirements with respect to preferential dividends on the Preferred
Stock (fixed in accordance with the provisions of section (b) of
this
Article Fourth), if any, shall have been met and after
the Corporation shall have complied with all the requirements, if
any,
with respect to the setting aside of sums as sinking funds or redemption
or purchase accounts (fixed in accordance with the provisions of
section
(b) of this Article Fourth), and subject further to any
conditions which may be fixed in accordance with the provisions of
section
(b) of this Article Fourth, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends
as may
be declared from time to time by the Board of
Directors.
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(2)
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After
distribution in full of the preferential amount, if any, (fixed in
accordance with the provisions of section (b) of this Article
Fourth), to be distributed to the holders of Preferred
Stock in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the
holders of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of
whatever
kind available for distribution to stockholders ratably in proportion
to
the number of shares of Common Stock held by them
respectively.
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(3)
|
Except
as may otherwise be required by law or by the provisions of such
resolution or resolutions as may be adopted by the Board of Directors
pursuant to section (b) of this Article Fourth, each
holder of Common Stock shall have one vote in respect of each share
of
Common Stock held on all matters voted upon by the
stockholders.
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(d) No
holder of any of the shares of any class or series of stock or of options,
warrants or other rights to purchase shares of any class or series of stock
or
of other securities of the Corporation shall have any preemptive right to
purchase or subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason of any increase
of the authorized capital stock of the Corporation of any class or series,
or
bonds, certificates of indebtedness, debentures or other securities convertible
into or exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or series
of
stock or securities convertible into or exchangeable for stock, or carrying
any
right to purchase stock, may be issued and disposed of pursuant to resolution
of
the Board of Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed advisable
by the Board of Directors in the exercise of its sole discretion.
(e) The
relative powers, preferences and rights of each series of Preferred Stock in
relation to the relative powers, preferences and rights of each other series
of
Preferred Stock shall, in each case, be as fixed from time to time by the Board
of Directors in the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article Fourth and the consent,
by class or series vote or otherwise, of the holders of such of the series
of
Preferred Stock as are from time to time outstanding shall not be required
for
the issuance by the Board of Directors of any other series of Preferred Stock
whether or not the powers, preferences and rights of such other series shall
be
fixed by the Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them; provided,
however, that the Board of Directors may provide in the resolution or
resolutions as to any series of Preferred Stock adopted pursuant to section
(b)
of this Article Fourth that the consent of the holders of a
majority (or such greater proportion as shall be therein fixed) of the
outstanding shares of such series voting thereon shall be required for the
issuance of any or all other series of Preferred Stock.
(f) Subject
to the provisions of section (e), shares of any series of Preferred Stock may
be
issued from time to time as the Board of Directors of the Corporation shall
determine and on such terms and for such consideration as shall be fixed by
the
Board of Directors.
(g) Shares
of Common Stock may be issued from time to time as the Board of Directors of
the
Corporation shall determine and on such terms and for such consideration as
shall be fixed by the Board of Directors.
(h) The
authorized amount of shares of Common Stock and of Preferred Stock may, without
a class or series vote, be increased or decreased from time to time by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote thereon.
Fifth:
- (a) The business and affairs of the Corporation shall be conducted
and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole Board,
provided, however, that the number of directors shall not be reduced so as
to
shorten the term of any director at the time in office, and provided further,
that the number of directors constituting the whole Board shall be twenty-four
until otherwise fixed by a majority of the whole Board.
(b) The
Board of Directors shall be divided into three classes, as nearly equal in
number as the then total number of directors constituting the whole Board
permits, with the term of office of one class expiring each year. At
the annual meeting of stockholders in 1982, directors of the first class shall
be elected to hold office for a term expiring at the next succeeding annual
meeting, directors of the second class shall be elected to hold office for
a
term expiring at the second succeeding annual meeting and directors of the
third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors
for any reason, and any newly created directorships resulting from any increase
in the directors, may be filled by the Board of Directors, acting by a majority
of the directors then in office, although less than a quorum, and any directors
so chosen shall hold office until the next annual election of
directors. At such election, the stockholders shall elect a successor
to such director to hold office until the next election of the class for which
such director shall have been chosen and until his successor shall be elected
and qualified. No decrease in the number of directors shall shorten
the term of any incumbent director.
(c) Notwithstanding
any other provisions of this Charter or Act of Incorporation or the By-Laws
of
the Corporation (and notwithstanding the fact that some lesser percentage may
be
specified by law, this Charter or Act of Incorporation or the By-Laws of the
Corporation), any director or the entire Board of Directors of the Corporation
may be removed at any time without cause, but only by the affirmative vote
of
the holders of two-thirds or more of the outstanding shares of capital stock
of
the Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the stockholders
called for that purpose.
(d) Nominations
for the election of directors may be made by the Board of Directors or by any
stockholder entitled to vote for the election of directors. Such
nominations shall be made by notice in writing, delivered or mailed by first
class United States mail, postage prepaid, to the Secretary of the Corporation
not less than 14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of directors; provided, however, that
if
less than 21 days' notice of the meeting is given to stockholders, such written
notice shall be delivered or mailed, as prescribed, to the Secretary of the
Corporation not later than the close of the seventh day following the day on
which notice of the meeting was mailed to stockholders. Notice of
nominations which are proposed by the Board of Directors shall be given by
the
Chairman on behalf of the Board.
(e) Each
notice under subsection (d) shall set forth (i) the name, age, business address
and, if known, residence address of each nominee proposed in such notice, (ii)
the principal occupation or employment of such nominee and (iii) the number
of
shares of stock of the Corporation which are beneficially owned by each such
nominee.
(f) The
Chairman of the meeting may, if the facts warrant, determine and declare to
the
meeting that a nomination was not made in accordance with the foregoing
procedure, and if he should so determine, he shall so declare to the meeting
and
the defective nomination shall be disregarded.
(g) No
action required to be taken or which may be taken at any annual or special
meeting of stockholders of the Corporation may be taken without a meeting,
and
the power of stockholders to consent in writing, without a meeting, to the
taking of any action is specifically denied.
Sixth:
- The Directors shall choose such officers, agents and servants as may be
provided in the By-Laws as they may from time to time find necessary or
proper.
Seventh:
- The Corporation hereby created is hereby given the same powers, rights and
privileges as may be conferred upon corporations organized under the Act
entitled "An Act Providing a General Corporation Law", approved March 10, 1899,
as from time to time amended.
Eighth:
- This Act shall be deemed and taken to be a private Act.
Ninth:
- This Corporation is to have perpetual existence.
Tenth:
- The Board of Directors, by resolution passed by a majority of the whole Board,
may designate any of their number to constitute an Executive Committee, which
Committee, to the extent provided in said resolution, or in the By-Laws of
the
Company, shall have and may exercise all of the powers of the Board of Directors
in the management of the business and affairs of the Corporation, and shall
have
power to authorize the seal of the Corporation to be affixed to all papers
which
may require it.
Eleventh:
- The private property of the stockholders shall not be liable for the payment
of corporate debts to any extent whatever.
Twelfth:
- The Corporation may transact business in any part of the world.
Thirteenth:
- The Board of Directors of the Corporation is expressly authorized to make,
alter or repeal the By-Laws of the Corporation by a vote of the majority of
the
entire Board. The stockholders may make, alter or repeal any By-Law
whether or not adopted by them, provided however, that any such additional
By-Laws, alterations or repeal may be adopted only by the affirmative vote
of
the holders of two-thirds or more of the outstanding shares of capital stock
of
the Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class).
Fourteenth:
- Meetings of the Directors may be held outside of the State of Delaware at
such
places as may be from time to time designated by the Board, and the Directors
may keep the books
of the Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth:
- (a) (1) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this Article
Fifteenth:
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(A)
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any
merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with or into (i) any Interested Stockholder
(as
hereinafter defined) or (ii) any other corporation (whether or not
itself
an Interested Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
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(B)
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any
sale, lease, exchange, mortgage, pledge, transfer or other disposition
(in
one transaction or a series of related transactions) to or with any
Interested Stockholder or any Affiliate of any Interested Stockholder
of
any assets of the Corporation or any Subsidiary having an aggregate
fair
market value of $1,000,000 or more,
or
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(C)
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the
issuance or transfer by the Corporation or any Subsidiary (in one
transaction or a series of related transactions) of any securities
of the
Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an aggregate
fair
market value of $1,000,000 or more,
or
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(D)
|
the
adoption of any plan or proposal for the liquidation or dissolution
of the
Corporation, or
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(E)
|
any
reclassification of securities (including any reverse stock split),
or
recapitalization of the Corporation, or any merger or consolidation
of the
Corporation with any of its Subsidiaries or any similar transaction
(whether or not with or into or otherwise involving an Interested
Stockholder) which has the effect, directly or indirectly, of increasing
the proportionate share of the outstanding shares of any class of
equity
or convertible securities of the Corporation or any Subsidiary which
is
directly or indirectly owned by any Interested Stockholder, or any
Affiliate of any Interested
Stockholder,
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shall
require the affirmative vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting
Shares"). Such affirmative vote shall be required notwithstanding the
fact that no vote may be required, or that some lesser percentage may be
specified, by law or in any agreement with any national securities exchange
or
otherwise.
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(2)
|
The
term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to
in any one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
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(b)
|
The
provisions of section (a) of this Article Fifteenth shall
not be applicable to
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any
particular business combination and such business combination shall require
only
such affirmative vote as is required by law and any other provisions of the
Charter or Act of Incorporation or By-Laws if such business combination has
been
approved by a majority of the whole Board.
(c) For
the purposes of this Article Fifteenth:
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(1)
|
A
"person" shall mean any individual, firm, corporation or other
entity.
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(2)
|
"Interested
Stockholder" shall mean, in respect of any business combination,
any
person (other than the Corporation or any Subsidiary) who or which
as of
the record date for the determination of stockholders entitled to
notice
of and to vote on such business combination, or immediately prior
to the
consummation of any such
transaction:
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(A)
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is
the beneficial owner, directly or indirectly, of more than 10% of
the
Voting Shares, or
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(B)
|
is
an Affiliate of the Corporation and at any time within two years
prior
thereto was the beneficial owner, directly or indirectly, of not
less than
10% of the then outstanding voting Shares,
or
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(C)
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is
an assignee of or has otherwise succeeded in any share of capital
stock of
the Corporation which were at any time within two years prior thereto
beneficially owned by any Interested Stockholder, and such assignment
or
succession shall have occurred in the course of a transaction or
series of
transactions not involving a public offering within the meaning of
the
Securities Act of 1933.
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(3)
|
A
person shall be the "beneficial owner" of any Voting
Shares:
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(A)
|
which
such person or any of its Affiliates and Associates (as hereafter
defined)
beneficially own, directly or indirectly,
or
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(B)
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which
such person or any of its Affiliates or Associates has (i) the right
to
acquire (whether such right is exercisable immediately or only after
the
passage of time), pursuant to any agreement, arrangement or understanding
or upon the exercise of conversion rights, exchange rights, warrants
or
options, or otherwise, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding,
or
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(C)
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which
are beneficially owned, directly or indirectly, by any other person
with
which such first mentioned person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of capital
stock of
the Corporation.
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(4)
|
The
outstanding Voting Shares shall include shares deemed owned
through
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application
of paragraph (3) above but shall not include any other Voting Shares which
may
be issuable pursuant to any agreement, or upon exercise of conversion rights,
warrants or options or otherwise.
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(5)
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"Affiliate"
and "Associate" shall have the respective meanings given those terms
in
Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on December 31,
1981.
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(6)
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"Subsidiary"
shall mean any corporation of which a majority of any class of equity
security (as defined in Rule 3a11-1 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31,
1981) is owned, directly or indirectly, by the Corporation; provided,
however, that for the purposes of the definition of Investment Stockholder
set forth in paragraph (2) of this section (c), the term "Subsidiary"
shall mean only a corporation of which a majority of each class of
equity
security is owned, directly or indirectly, by the
Corporation.
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(d) majority
of the directors shall have the power and duty to determine for the purposes
of
this Article Fifteenth on the basis of information known to
them, (1) the number of Voting Shares beneficially owned by any person (2)
whether a person is an Affiliate or Associate of another, (3) whether a person
has an agreement, arrangement or understanding with another as to the matters
referred to in paragraph (3) of section (c), or (4) whether the assets subject
to any business combination or the consideration received for the issuance
or
transfer of securities by the Corporation, or any Subsidiary has an aggregate
fair market value of $1,000,000 or more.
(e) Nothing
contained in this Article Fifteenth shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by
law.
Sixteenth: Notwithstanding
any other provision of this Charter or Act of Incorporation or the By-Laws
of
the Corporation (and in addition to any other vote that may be required by
law,
this Charter or Act of Incorporation by the By-Laws), the affirmative vote
of
the holders of at least two-thirds of the outstanding shares of the capital
stock of the Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend, alter
or
repeal any provision of Articles Fifth, Thirteenth, Fifteenth
or Sixteenth of this Charter or Act of
Incorporation.
Seventeenth:
(a) a
Director of this Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a Director,
except to the extent such exemption from liability or limitation thereof is
not
permitted under the Delaware General Corporation Laws as the same exists or
may
hereafter be amended.
(b) Any
repeal or modification of the foregoing paragraph shall not adversely affect
any
right or protection of a Director of the Corporation existing hereunder with
respect to any act or omission occurring prior to the time of such repeal or
modification."
EXHIBIT
4
BY-LAWS
WILMINGTON
TRUST COMPANY
WILMINGTON,
DELAWARE
As
existing on December 16, 2004
BY-LAWS
OF WILMINGTON TRUST COMPANY
ARTICLE
1
Stockholders'
Meetings
Section
1. Annual Meeting. The annual meeting of
stockholders shall be held on the third Thursday in April each year at the
principal office at the Company or at such other date, time or place as may
be
designated by resolution by the Board of Directors.
Section
2. Special Meetings. Special meetings of
stockholders may be called at any time by the Board of Directors, the Chairman
of the Board, the Chief Executive Officer or the President.
Section
3. Notice. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before said meeting,
at his last known address, a written or printed notice fixing the time and
place
of such meeting.
Section
4. Quorum. A majority in the amount of the capital stock of
the Company issued and outstanding on the record date, as herein determined,
shall constitute a quorum at all meetings of stockholders for the transaction
of
any business, but the holders of a smaller number of shares may adjourn from
time to time, without further notice, until a quorum is secured. At
each annual or special meeting of stockholders, each stockholder shall be
entitled to one vote, either in person or by proxy, for each share of stock
registered in the stockholder's name on the books of the Company on the record
date for any such meeting as determined herein.
ARTICLE
2
Directors
Section
1. Management. The affairs and business of the
Company shall be managed by or under the direction of the Board of
Directors.
Section
2. Number. The authorized number of directors that
shall constitute the Board of Directors shall be fixed from time to time by
or
pursuant to a resolution passed by a majority of the Board of Directors within
the parameters set by the Charter of the Company. No more than two directors
may
also be employees of the Company or any affiliate thereof.
Section
3. Qualification. In addition to any other
provisions of these Bylaws, to be qualified for nomination for election or
appointment to the Board of Directors, a person must have not attained the
age
of sixty-nine years at the time of such election or appointment, provided
however, the Nominating and Corporate Governance Committee may waive such
qualification as to a particular candidate otherwise qualified to serve as
a
director upon a good faith determination by such committee that such a waiver
is
in the best interests of the Company and its stockholders. The
Chairman of the Board and the Chief Executive Officer shall not be qualified
to
continue to serve as directors upon the termination of their service in those
offices for any reason.
Section
4. Meetings. The Board of Directors shall meet at
the principal office of the Company or elsewhere in its discretion at such
times
to be determined by a majority of its members, or at the call of the Chairman
of
the Board of Directors, the Chief Executive Officer or the
President.
Section
5. Special Meetings. Special meetings of the Board
of Directors may be called at any time by the Chairman of the Board, the Chief
Executive Officer or the President, and shall be called upon the written request
of a majority of the directors.
Section
6. Quorum. A majority of the directors elected and
qualified shall be necessary to constitute a quorum for the transaction of
business at any meeting of the Board of Directors.
Section
7. Notice. Written notice shall be sent by mail to
each director of any special meeting of the Board of Directors, and of any
change in the time or place of any regular meeting, stating the time and place
of such meeting, which shall be mailed not less than two days before the time
of
holding such meeting.
Section
8. Vacancies. In the event of the death,
resignation, removal, inability to act or disqualification of any director,
the
Board of Directors, although less than a quorum, shall have the right to elect
the successor who shall hold office for the remainder of the full term of the
class of directors in which the vacancy occurred, and until such director's
successor shall have been duly elected and qualified.
Section
9. Organization Meeting. The Board of Directors at
its first meeting after its election by the stockholders shall appoint an Audit
Committee, a Compensation Committee and a Nominating and Corporate Governance
Committee, and shall elect from its own members a Chairman of the
Board, a Chief Executive Officer and a President, who may be the same
person. The Board of Directors shall also elect at such meeting a
Secretary and a Chief Financial Officer, who may be the same person, and may
appoint at any time such committees as it may deem advisable. The
Board of Directors may also elect at such meeting one or more Associate
Directors. The Board of Directors, or a committee designated by the
Board of Directors may elect or appoint such other officers as they may deem
advisable.
Section
10. Removal. The Board of Directors may at any time
remove, with or without cause, any member of any committee appointed by it
or
any associate director or officer elected by it and may appoint or elect his
successor.
Section
11. Responsibility of Officers. The Board of
Directors may designate an officer to be in charge of such departments or
divisions of the Company as it may deem advisable.
Section
12. Participation in Meetings. The Board of
Directors or any committee of the Board of Directors may participate in a
meeting of the Board of Directors or such committee, as the case may be, by
conference telephone, video facilities or other communications
equipment. Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if all of the members of the Board of Directors or the committee,
as
the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of the Board of Directors or such
committee.
ARTICLE
3
Committees
of the Board of Directors
Section
1. Audit Committee.
(A) The
Audit Committee shall be composed of not more than five (5) members, who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer or employee of the Company, and shall hold office at the pleasure
of the Board.
(B) The
Audit Committee shall have general supervision over the Audit Services Division
in all matters however subject to the approval of the Board of Directors; it
shall consider all matters brought to its attention by the officer in charge
of
the Audit Services Division, review all reports of examination of the Company
made by any governmental agency or such independent auditor employed for that
purpose, and make such recommendations to the Board of Directors with respect
thereto or with respect to any other matters pertaining to auditing the Company
as it shall deem desirable.
(C) The
Audit Committee shall meet whenever and wherever its Chairperson, the Chairman
of the Board, the Chief Executive Officer, the President or a majority of the
Committee’s members shall deem it to be proper for the transaction of its
business. A majority of the Committee’s members shall constitute a
quorum for the transaction of business. The acts of the majority at a meeting
at
which a quorum is present shall constitute action by the Committee.
Section
2. Compensation Committee.
(A) The
Compensation Committee shall be composed of not more than five (5) members,
who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer or employee of the Company, and shall hold office at the
pleasure of the Board of Directors.
(B) The
Compensation Committee shall in general advise upon all matters of policy
concerning compensation, including salaries and employee benefits.
(C) The
Compensation Committee shall meet whenever and wherever its Chairperson, the
Chairman of the Board, the Chief Executive Officer, the President or a majority
of the Committee’s members shall deem it to be proper for the transaction of its
business. A majority of the Committee’s members shall constitute a
quorum for the transaction of business. The acts of the majority at a meeting
at
which a quorum is present shall constitute action by the Committee.
Section
3. Nominating and Corporate Governance Committee.
(A) The
Nominating and Corporate Governance Committee shall be composed of not more
than
five members, who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer or employee of the Company, and shall
hold office at the pleasure of the Board of Directors.
(B) The
Nominating and Corporate Governance Committee shall provide counsel and make
recommendations to the Chairman of the Board and the full Board with respect
to
the performance of the Chairman of the Board and the Chief Executive Officer,
candidates for membership on the Board of Directors and
its committees, matters of corporate governance, succession planning for the
Company’s executive management and significant shareholder relations
issues.
(C) The
Nominating and Corporate Governance Committee shall meet whenever and wherever
its Chairperson, the Chairman of the Board, the Chief Executive Officer, the
President, or a majority of the Committee’s members shall deem it to be proper
for the transaction of its business. A majority of the Committee’s
members shall constitute a quorum for the transaction of business. The acts
of
the majority at a meeting at which a quorum is present shall constitute action
by the Committee.
Section
4. Other Committees. The Company may have such
other committees with such powers as the Board may designate from time to time
by resolution or by an amendment to these Bylaws.
Section
5. Associate Directors.
(A) Any
person who has served as a director may be elected by the Board of Directors
as
an associate director, to serve at the pleasure of the Board of
Directors.
(B) Associate
directors shall be entitled to attend all meetings of directors and participate
in the discussion of all matters brought to the Board of Directors, but will
not
have a right to vote.
Section
6. Absence or Disqualification of Any Member of a
Committee. In the absence or disqualification of any member of
any committee created under Article III of these Bylaws, the member or members
thereof present at any meeting and not disqualified from voting, whether or
not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
ARTICLE
4
Officers
Section
1. Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the Board of Directors and shall have such
further authority and powers and shall perform such duties the Board of
Directors may assign to him from time to time.
Section
2. Chief Executive Officer. The Chief Executive
Officer shall have the powers and duties pertaining to the office of Chief
Executive Officer conferred or imposed upon him by statute, incident to his
office or as the Board of Directors may assign to him from time to
time. In the absence of the Chairman of the Board, the Chief
Executive Officer shall have the powers and duties of the Chairman of the
Board.
Section
3. President. The President shall have the powers
and duties pertaining to the office of the President conferred or imposed upon
him by statute, incident to his office or as the Board of Directors may assign
to him from time to time. In the absence of the Chairman of the Board
and the Chief Executive Officer, the President shall have the powers and duties
of the Chairman of the Board.
Section
4. Duties. The Chairman of the Board, the Chief
Executive Officer or the President, as designated by the Board of Directors,
shall carry into effect all legal directions of the Board of Directors and
shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his
office.
Section
5. Vice Presidents. There may be one or more Vice
Presidents, however denominated by the Board of Directors, who may at any time
perform all of the duties of the Chairman of the Board, the Chief Executive
Officer and/or the President and such other powers and duties incident to their
respective offices or as the Board of Directors, the Chairman of the Board,
the
Chief Executive Officer or the President or the officer in charge of the
department or division to which they are assigned may assign to them from time
to time.
Section
6. Secretary. The Secretary shall attend to the
giving of notice of meetings of the stockholders and the Board of Directors,
as
well as the committees thereof, to the keeping of accurate minutes of all such
meetings, recording the same in the minute books of the Company and in general
notifying the Board of Directors of material matters affecting the Company
on a
timely basis. In addition to the other notice requirements of these
Bylaws and as may be practicable under the circumstances, all such notices
shall
be in writing and mailed well in advance of the scheduled date of any such
meeting. He shall have custody of the corporate seal, affix the same
to any documents requiring such corporate seal, attest the same and perform
other duties incident to his office.
Section
7. Chief Financial Officer. The Chief Financial
Officer shall have general supervision over all assets and liabilities of the
Company. He shall be custodian of and responsible for all monies,
funds and valuables of the Company and for the keeping of proper records of
the
evidence of property or indebtedness and of all transactions of the
Company. He shall have general supervision of the expenditures of the
Company and periodically shall report to the Board of Directors the condition
of
the Company, and perform such other duties incident to his office or as the
Board of Directors, the Chairman of the Board, the Chief Executive Officer
or
the President may assign to him from time to time.
Section
8. Controller. There may be a Controller who shall
exercise general supervision over the internal operations of the Company,
including accounting, and shall render to the Board of Directors or the Audit
Committee at appropriate times a report relating to the general condition and
internal operations of the Company and perform other duties incident to his
office.
There
may be one or more subordinate accounting or controller officers however
denominated, who may perform the duties of the Controller and such duties as
may
be prescribed by the Controller.
Section
9. Audit Officers. The officer designated by the
Board of Directors to be in charge of the Audit Services Division of the
Company, with such title as the Board of Directors shall prescribe, shall report
to and be directly responsible to the Audit Committee and the Board of
Directors.
There
shall be an Auditor and there may be one or more Audit Officers, however
denominated, who may perform all the duties of the Auditor and such duties
as
may be prescribed by the officer in charge of the Audit Services
Division.
Section
10. Other Officers. There may be one or more
officers, subordinate in rank to all Vice Presidents with such functional titles
as shall be determined from time to time by the Board of Directors, who shall
ex
officio hold the office of Assistant Secretary of the Company and who may
perform such duties as may be prescribed by the officer in charge of the
department or division to which they are assigned.
Section
11. Powers and Duties of Other Officers. The powers
and duties of all other officers of the Company shall be those usually
pertaining to their respective offices, subject to the direction of the Board
of
Directors, the Chairman of the Board, the Chief Executive Officer or the
President and the officer in charge of the department or division to which
they
are assigned.
Section
12. Number of Offices. Any one or more offices of
the Company may be held by the same person, except that (A) no individual may
hold more than one of the offices of Chief Financial Officer, Controller or
Audit Officer and (B) none of the Chairman of the Board, the Chief Executive
Officer or the President may hold any office mentioned in Section
12(A).
ARTICLE
5
Stock
and Stock Certificates
Section
1. Transfer. Shares of stock shall be transferable
on the books of the Company and a transfer book shall be kept in which all
transfers of stock shall be recorded.
Section
2. Certificates. Every holder of stock shall be
entitled to have a certificate signed by or in the name of the Company by the
Chairman of the Board, the Chief Executive Officer or the President or a Vice
President, and by the Secretary or an Assistant Secretary, of the Company,
certifying the number of shares owned by him in the Company. The
corporate seal affixed thereto, and any of or all the signatures on the
certificate, may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon
a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Company with the
same
effect as if he were such officer, transfer agent or registrar at the date
of
issue. Duplicate certificates of stock shall be issued only upon
giving such security as may be satisfactory to the Board of
Directors.
Section
3. Record Date. The Board of Directors is
authorized to fix in advance a record date for the determination of the
stockholders entitled to notice of, and to vote at, any meeting of stockholders
and any adjournment thereof, or entitled to receive payment of any dividend,
or
to any allotment of rights, or to exercise any rights in respect of any change,
conversion or exchange of capital stock, or in connection with obtaining the
consent of stockholders for any purpose, which record date shall not be more
than 60 nor less than 10 days preceding the date of any meeting of stockholders
or the date for the payment of any dividend, or the date for the allotment
of
rights, or the date when any change or conversion or exchange of capital stock
shall go into effect, or a date in connection with obtaining such
consent.
ARTICLE
6
Seal
The
corporate seal of the Company shall be in the following form:
Between
two concentric circles the words “Wilmington Trust Company” within the inner
circle the words “Wilmington, Delaware.”
ARTICLE
7
Fiscal
Year
The
fiscal year of the Company shall be the calendar year.
ARTICLE
8
Execution
of Instruments of the Company
The
Chairman of the Board, the Chief Executive Officer, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver
and
the Secretary or any Assistant Secretary shall have full power and authority
to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company
or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment
or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors, and any and all such instruments
shall have the same force and validity as though expressly authorized by the
Board of Directors.
ARTICLE
9
Compensation
of Directors and Members of Committees
Directors
and associate directors of the Company, other than salaried officers of the
Company, shall be paid such reasonable honoraria or fees for attending meetings
of the Board of Directors as the Board of Directors may from time to time
determine. Directors and associate directors who serve as members of
committees, other than salaried employees of the Company, shall be paid such
reasonable honoraria or fees for services as members of committees as the Board
of Directors shall from time to time determine and directors and associate
directors may be authorized by the Company to perform such special services
as
the Board of Directors may from time to time determine in accordance with any
guidelines the Board of Directors may adopt for such services, and shall be
paid
for such special services so performed reasonable compensation as may be
determined by the Board of Directors.
ARTICLE
10
Indemnification
Section
1. Persons Covered. The Company shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit
or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director or associate director of the Company,
a member of an advisory board the Board of Directors of the Company or any
of
its subsidiaries may appoint from time to time or is or was serving at the
request of the Company as a director, officer, employee, fiduciary or agent
of
another corporation, partnership, limited liability company, joint venture,
trust, enterprise or non-profit entity that is not a subsidiary or affiliate
of
the Company, including service with respect to employee benefit plans, against
all liability and loss suffered and expenses reasonably incurred by such
person. The Company shall be required to indemnify such a person in
connection with a proceeding initiated by such person only if the proceeding
was
authorized by the Board of Directors.
The
Company may indemnify and hold harmless, to the fullest extent permitted by
applicable law as it presently exists or may hereafter be amended, any person
who was or is made or threatened to be made a party or is otherwise involved
in
any proceeding by reason of the fact that he, or a person for whom he is the
legal
representative,
is or was an officer, employee or agent of the Company or a director, officer,
employee or agent of a subsidiary or affiliate of the Company, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Company may indemnify any such person in connection with
a proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors.
Section
2. Advance of Expenses. The Company shall pay the
expenses incurred in defending any proceeding involving a person who is or
may
be indemnified pursuant to Section 1 in advance of its final disposition,
provided, however, that the payment of expenses incurred by such a person in
advance of the final disposition of the proceeding shall be made only upon
receipt of an undertaking by that person to repay all amounts advanced if it
should be ultimately determined that the person is not entitled to be
indemnified under this Article 10 or otherwise.
Section
3. Certain Rights. If a claim under this Article 10
for (A) payment of expenses or (B) indemnification by a director, associate
director, member of an advisory board the Board of Directors of the Company
or
any of its subsidiaries may appoint from time to time or a person who is or
was
serving at the request of the Company as a director, officer, employee,
fiduciary or agent of another corporation, partnership, limited liability
company, joint venture, trust, enterprise or nonprofit entity that is not a
subsidiary or affiliate of the Company, including service with respect to
employee benefit plans, is not paid in full within sixty days after a written
claim therefor has been received by the Company, the claimant may file suit
to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any
such
action, the Company shall have the burden of proving that the claimant was
not
entitled to the requested indemnification or payment of expenses under
applicable law.
Section
4. Non-Exclusive. The rights conferred on any
person by this Article 10 shall not be exclusive of any other rights which
such
person may have or hereafter acquire under any statute, provision of the Charter
or Act of Incorporation, these Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
Section
5. Reduction of Amount. The Company's obligation,
if any, to indemnify any person who was or is serving at its request as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, enterprise or nonprofit entity shall be reduced by any amount
such person may collect as indemnification from such other corporation,
partnership, joint venture, trust, enterprise or nonprofit entity.
Section
6. Effect of Modification. Any amendment, repeal or
modification of the foregoing provisions of this Article 10 shall not adversely
affect any right or protection hereunder of any person in respect of any act
or
omission occurring prior to the time of such amendment, repeal or
modification.
ARTICLE
11
Amendments
to the Bylaws
These
Bylaws may be altered, amended or repealed, in whole or in part, and any new
Bylaw or Bylaws adopted at any regular or special meeting of the Board of
Directors by a vote of a majority of all the members of the Board of Directors
then in office.
ARTICLE
12
Miscellaneous
Whenever
used in these Bylaws, the singular shall include the plural, the plural shall
include the singular unless the context requires otherwise and the use of either
gender shall include both genders.
EXHIBIT
6
Section
321(b) Consent
Pursuant
to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington
Trust Company hereby consents that reports of examinations by Federal, State,
Territorial or District authorities may be furnished by such authorities to
the
Securities and Exchange Commission upon request therefor.
Dated:
|
|
WILMINGTON
TRUST COMPANY
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Denise Geran
|
|
|
Name:
|
Denise
Geran
|
|
|
Title:
|
Vice
President
|
EXHIBIT
7
NOTICE
This
form is intended to assist state nonmember banks and savings banks with state
publication requirements. It has not been approved by any state
banking authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R
E P O R T O F C O N D I T I O
N
Consolidating
domestic subsidiaries of the
WILMINGTON
TRUST
COMPANY
of
WILMINGTON
Name of
Bank
City
in
the State of DELAWARE , at the close of business
on September
30, 2007.
ASSETS
|
Thousands
of dollars
|
Cash
and balances due from depository institutions:
|
|
Noninterest-bearing
balances and currency and coins
|
247,352
|
Interest-bearing
balances
|
0
|
Held-to-maturity
securities
|
1,171
|
Available-for-sale
securities
|
1,339,816
|
Federal
funds sold in domestic offices
|
128,500
|
Securities
purchased under agreements to resell
|
14,467
|
Loans
and lease financing receivables:
|
|
Loans
and leases held for sale
|
3,379
|
Loans
and leases, net of unearned income
|
7,793,026
|
LESS: Allowance
for loan and lease losses
|
90,906
|
Loans
and leases, net of unearned income, allowance, and reserve
|
7,702,120
|
Assets
held in trading accounts
|
0
|
Premises
and fixed assets (including capitalized leases)
|
133,263
|
Other
real estate owned
|
199
|
Investments
in unconsolidated subsidiaries and associated companies
|
2,860
|
Intangible
assets:
|
|
a. Goodwill
|
1,946
|
b. Other
intangible assets
|
3,315
|
Other
assets
|
317,940
|
Total
assets
|
9,896,328
|
CONTINUED
ON NEXT PAGE
LIABILITIES
Deposits:
|
|
In
domestic offices
|
6,994,751
|
Noninterest-bearing
|
748,309
|
Interest-bearing
|
6,246,442
|
Federal
funds purchased in domestic offices
|
1,014,834
|
Securities
sold under agreements to repurchase
|
434,190
|
Trading
liabilities (from Schedule RC-D)
|
0
|
Other
borrowed money (includes mortgage indebtedness and obligations under
capitalized leases)
|
315,797
|
Subordinated
notes and debentures
|
0
|
Other
liabilities (from Schedule RC-G)
|
248,973
|
Total
liabilities
|
9,008,545
|
EQUITY
CAPITAL
Perpetual
preferred stock and related surplus
|
0
|
Common
Stock
|
500
|
Surplus
(exclude all surplus related to preferred stock)
|
125,803
|
a. Retained
earnings
|
811,365
|
b. Accumulated
other comprehensive income
|
(49,885)
|
Total
equity capital
|
887,783
|
Total
liabilities, minority interest, and equity capital
|
9,896,328
|
3