Exhibit 1.1
WESTERN ALLIANCE BANCORPORATION
10% Senior Notes due 2015
Underwriting Agreement
August 20, 2010
Keefe, Bruyette & Woods, Inc.
Goldman, Sachs & Co.
As Representatives of the several Underwriters
c/o Keefe, Bruyette & Woods, Inc.
787 Seventh Avenue
4th Floor
New York, New York 10019
Ladies and Gentlemen:
Western Alliance Bancorporation, a Nevada corporation (the “Company”), agrees, subject to the
terms and conditions stated herein, to issue and sell to the several Underwriters listed in
Schedule I hereto (the “Underwriters”, “you” or “your”), for whom you are acting as representatives
(the “Representatives”) an aggregate of $75,000,000 principal amount of 10% Senior Notes due 2015
(the “Securities”).
1. The Company represents and warrants to, and agrees with, the Underwriters that:
(a) A registration statement on Form S-3 (File No 333-158971) (the “Initial
Registration Statement”) in respect of the Securities has been filed with the Securities and
Exchange Commission (the “Commission”); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered to you and,
excluding exhibits to the Initial Registration Statement, but including all documents
incorporated by reference in the prospectus included therein, to you have been declared
effective by the Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a “Rule 462(b) Registration Statement”), filed pursuant
to Rule 462(b) under the Securities Act of 1933, as amended (the “Act”), which became
effective upon filing, no other document with respect to the Initial Registration Statement
or document incorporated by reference therein has
heretofore been filed, or transmitted for filing, with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered to you); the Company meets the
requirements for use of Form S-3 under the Act; no stop order suspending the effectiveness
of the Initial Registration Statement, any post-effective amendment thereto or any part
thereof or the Rule 462(b) Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission (the base prospectus
filed as part of the Initial Registration Statement, in the form in which it has most
recently been filed with the Commission on or prior to the date of this Agreement relating
to the Securities, is hereinafter called the “Basic Prospectus”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary
Prospectus”; the various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and including any prospectus
supplement relating to the Securities that is filed with the Commission and deemed by virtue
of Rule 430B under the Act to be part of the Initial Registration Statement, each as amended
at the time such part of the Initial Registration Statement became effective or such part of
the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the “Registration Statement”; the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time (as defined in Section
1(c) hereof), is hereinafter called the “Pricing Prospectus”; the form of the final
prospectus relating to the Securities filed with Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof is hereinafter called the “Prospectus”; any
reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3, as of the date of such prospectus; any
reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any post-effective amendment to
the Registration Statement, any prospectus supplement relating to the Securities filed with
the Commission pursuant to Rule 424(b) under the Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein,
in each case after the date of the Basic Prospectus, such Preliminary Prospectus or the
Prospectus, as the case may be; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and any “issuer
free writing prospectus” as defined in Rule 433 under the Act relating to the Securities is
hereinafter called an “Issuer Free Writing Prospectus”); each Preliminary Prospectus and the
Prospectus delivered to the Underwriters for use in connection with this offering was
identical to the
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electronically transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(b) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”), and the rules and regulations of the Commission thereunder, and did not
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by you expressly
for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is 12:30 p.m. (Eastern
time) on the date of this Agreement; the Pricing Prospectus as supplemented by the final
term sheet prepared and filed pursuant to Section 5(a) hereof, taken together (collectively,
the “Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; and each Issuer Free Writing Prospectus listed on Schedule II(a) hereto does not
conflict with the information contained in the Registration Statement, the Pricing
Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented
by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not
include any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and warranty shall
not apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the Company by you expressly
for use therein;
(d) The documents incorporated by reference in the Pricing Prospectus and Prospectus,
when they became effective or were filed with the Commission, as the case may be, conformed
in all material respects to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a material fact or
omit to state a material fact
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required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by you expressly for use therein; and no such documents were filed
with the Commission since the Commission’s close of business on the business day immediately
prior to the date of this Agreement and prior to the execution of this Agreement, except as
set forth on Schedule II(b) hereto;
(e) The Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the Trust Indenture Act and the rules
and regulations of the Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as of the applicable filing
date as to the Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by you expressly
for use therein;
(f) Neither the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included or incorporated by reference in the Pricing
Prospectus any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or contemplated in the
Pricing Prospectus; and, since the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not been (i) any change in the
capital stock or long term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, condition (financial or
otherwise), stockholders’ equity or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising in the ordinary course of business (a
“Material Adverse Effect”), otherwise than as set forth or contemplated in the Pricing
Prospectus; (ii) there have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business or as set forth or
contemplated in the Pricing Prospectus, which are material with respect to the Company and
its subsidiaries taken as a whole; and (iii) other than dividends paid on the Company’s
Series A Fixed Rate Cumulative Perpetual Preferred Stock, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of its capital
stock;
(g) The Company and its subsidiaries have good and marketable title to all real
property and good and marketable title to all personal property owned by them, in each case
free and clear of all liens, mortgages, pledges, security
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interests, encumbrances and defects except such as are described in the Pricing
Prospectus or such as do not, individually or in the aggregate, materially affect the value
of such property and do not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries taken as a whole; and all of the leases and
subleases material to the business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its subsidiaries holds properties
described in the Pricing Prospectus and the Prospectus, are in full force and effect, and
neither the Company nor any subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any subsidiary under any
of the leases or subleases mentioned above, or affecting or questioning the rights of the
Company or such subsidiary to the continued possession of the leased or subleased premises
under any such lease or sublease;
(h) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Nevada, with power and authority to own, lease
and operate its properties and conduct its business as described in the Pricing Prospectus
and perform its obligations under this Agreement, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or disability by reason
of the failure to be so qualified in any such jurisdiction, except where the failure so to
qualify or to be in good standing would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; each “significant subsidiary” of the Company (as
such term is defined in Rule 1-02 of Regulation S-X) (each a “Subsidiary” and, collectively,
the “Subsidiaries”) has been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its business as described
in the Pricing Disclosure Package and the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect; the activities of the Company’s subsidiaries are
permitted of subsidiaries of a bank holding company under applicable law and the rules and
regulations of the Federal Reserve Board (the “Federal Reserve”) set forth in Title 12 of
the Code of Federal Regulations; the activities of Subsidiaries that are banks (each, a
“Bank,” and collectively, the “Banks”) are permitted under the laws and regulations of their
respective jurisdictions of organization and the deposit accounts in the Banks are insured
up to the applicable limits by the Federal Deposit Insurance Corporation (the “FDIC”);
except as otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each such Subsidiary has been duly authorized and validly
issued, is fully paid and non assessable and is owned by the Company, directly or through
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subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights of any security
holder of such Subsidiary;
(i) The Company has an authorized capitalization as set forth in the Pricing Prospectus
and all of the issued shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable; and all of the issued shares of
capital stock of each subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims; none of the
outstanding shares of capital stock of any subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such subsidiary; except as described
in the Pricing Disclosure Package and the Prospectus, there are no outstanding rights
(contractual or otherwise), warrants or options to acquire, or instruments convertible into
or exchangeable for, or agreements or understandings with respect to the sale or issuance
of, any shares of capital stock of or other equity interest in the Company except pursuant
to the Company’s stock plans and awards currently in effect on the date hereof;
(j) The Securities have been duly authorized and, when issued and delivered pursuant to
this Agreement, will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled to the benefits
provided by the indenture (the “Base Indenture”) to be entered into between the Company and
Wells Fargo Bank, N.A. as Trustee (the “Trustee”), as amended and supplemented by the First
Supplemental Indenture to be entered into between the Company and the Trustee (the
“Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), under
which the Securities are to be issued, which is substantially in the form filed as an
exhibit to the Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, when executed and delivered by the Company and
the Trustee, will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles; and the Securities and the Indenture will conform
to the descriptions thereof in the Pricing Disclosure Package and the Prospectus;
(k) The execution, delivery and performance of this Agreement and the issue and sale of
the Securities and the compliance by the Company with all of the provisions this Agreement
and the consummation of the other transactions contemplated herein (including the use of the
proceeds from the sale of the Securities as described in the Prospectus under the caption
“Use of Proceeds”) do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default or Repayment Event under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
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which the Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or assets of the Company or any
of its subsidiaries is subject, except for such conflicts, violations or defaults that would
not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, nor will such action result in any violation of the provisions of the
Amended and Restated Articles of Incorporation, as amended, or Amended and Restated By-Laws
of the Company or the charter or bylaws of any subsidiary or any statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this Agreement or the
Indenture except as have been obtained from the Federal Reserve Bank of San Francisco and
under the Act and under the Trust Indenture Act, and except such consents, approvals,
authorizations, registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Securities by the
Underwriters; as used herein, a “Repayment Event” means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or any person acting on
such holder’s behalf) the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any subsidiary.
(l) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the subject, which,
(i) is required to be disclosed in the Registration Statement (other than as disclosed
therein) or (ii) if determined adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect
or which might reasonably be expected to materially and adversely affect the properties or
assets thereof or the consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder; and, to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(m) Neither the Company nor any of its subsidiaries is in violation of its Amended and
Restated Articles of Incorporation, as amended, or Amended and Restated By-Laws or in
default in the performance or observance of any obligation, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be bound,
except, in the case of any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument, for such defaults that would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect;
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(n) The statements set forth in the Pricing Prospectus and the Prospectus under the
caption “Description of Notes”, insofar as they purport to constitute a summary of the terms
of the Securities and under the captions “Material U.S. Federal Income and Estate Tax
Consequences for Non-U.S. Holders”, and “Underwriting”, insofar as they purport to describe
the provisions of the laws and documents referred to therein, are accurate, complete and
fair;
(o) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be an “investment company”,
or an entity “controlled” by an “investment company” as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment Company Act”);
(p) At the earliest time after the filing of the Initial Registration Statement that
the Company or another offering participant made a
bona fide
offer (within the meaning of
Rule 164(h)(2) under the Act) of the Securities, the Company was not an “ineligible issuer”
as defined in Rule 405 under the Act;
(q) McGladrey & Pullen, LLP, who has certified certain financial statements of the
Company and its subsidiaries and who has audited the Company’s internal control over
financial reporting and management’s assessment thereof, is an independent registered public
accounting firm as required by the Act and the rules and regulations of the Commission
thereunder; with respect to the Company, McGladrey & Pullen, LLP is not and has not been in
violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002
(“Sarbanes-Oxley Act”) and the related rules and regulations of the Commission;
(r) The Company and each of its Subsidiaries maintains a system of internal control
over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act)
that complies with the requirements of the Exchange Act and has been designed by the
Company’s principal executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles. The Company’s internal control over
financial reporting is effective and the Company is not aware of any material weaknesses in
its internal control over financial reporting (whether or not remediated);
(s) Since the date of the latest audited financial statements included or incorporated
by reference in the Prospectus, there has been no change in the Company’s internal control
over financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting;
(t) The Company and its Subsidiaries maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the
requirements of the Exchange Act; such disclosure controls and procedures have been designed
to ensure that material information relating to the Company and its subsidiaries is made
known to the Company’s principal
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executive officer and principal financial officer by others within those entities to
allow timely decisions regarding disclosure; and such disclosure controls and procedures are
effective to perform the functions for which they were established. Based on the evaluation
of the Company’s and each Subsidiary’s disclosure controls and procedures described above,
the Company is not aware of (1) any significant deficiency in the design or operation of
internal controls which could adversely affect the Company’s ability to record, process,
summarize and report financial data or any material weaknesses in internal controls or (2)
any fraud, whether or not material, that involves management or other employees who have a
significant role in the Company’s internal controls. Since the most recent evaluation of
the Company’s disclosure controls and procedures described above, there have been no
significant changes in internal controls or in other factors that could significantly affect
internal controls;
(u) The financial statements included in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, together with the related schedules and notes, fairly
present the financial position of the Company and its consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders’ equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement, the Pricing Disclosure Package
and the Prospectus present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial information included
in the Registration Statement, the Pricing Disclosure Package and the Prospectus present
fairly the information shown therein and have been compiled on a basis consistent with that
of the audited financial statements included in the Registration Statement and the books and
records of the Company. No other financial statements or schedules are required to be
included in the Registration Statement. To the extent applicable, all disclosures contained
in the Registration Statement or the Prospectus regarding “non-GAAP financial measures” (as
such term is defined by the rules and regulations of the Commission) comply with Regulation
G of the Exchange Act, the rules and regulations of the Exchange Act and Item 10 of
Regulation S-K under the Act, as applicable;
(v) No labor dispute with the employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or any subsidiary’s
principal suppliers, manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect;
(w) There are no contracts or documents which are required to be described in the
Registration Statement, the Pricing Disclosure Package, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have not been so
described and filed as required;
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(x) The Company and its subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures and excluding generally commercially
available “off the shelf” software programs licensed pursuant to shrink wrap or “click and
accept” licenses), trademarks, service marks, trade names or other intellectual property
(collectively, “Intellectual Property”) necessary to carry on the business now operated by
them, and neither the Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy, individually or in the
aggregate, would reasonably be expected to result in a Material Adverse Effect;
(y) The Company and its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, “Governmental Licenses”) issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; all of the Governmental Licenses are valid and in full force
and effect, except where the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and neither the Company
nor any of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be
expected to result in a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has failed to file with applicable regulatory authorities any statement,
report, information or form required by any applicable law, regulation or order, except
where the failure to be so in compliance would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, all such filings were in material
compliance with applicable laws when filed and no material deficiencies have been asserted
by any regulatory commission, agency or authority with respect to any such filings or
submissions;
(z) Except as described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus, and except as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or
judgment, relating to
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pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold
(collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), (B) the Company and its subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws;
(aa) The Company and each of the subsidiaries has (i) timely filed all material
foreign, United States federal, state and local tax returns, information returns, and
similar reports that are required to be filed (taking into account valid extensions), and
all tax returns are true, correct and complete, (ii) paid in full all taxes required to be
paid by it and any other assessment, fine or penalty levied against it, except for any such
tax assessment, fine or penalty that is currently being contested in good faith or as would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect, and (iii) established on the most recent balance sheet reserves that are adequate
for the payment of all taxes not yet due and payable;
(bb) The Company and its subsidiaries carry, or are covered by, insurance in such
amounts and covering such risks as the Company reasonably believes are adequate for the
conduct of the business of the Company and its subsidiaries and the value of their
properties and as are customary in the business in which the Company and its subsidiaries
are engaged; neither the Company nor any of its subsidiaries has been refused any insurance
coverage sought or applied for; and the Company has no reason to believe that they will not
be able to renew their existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue its business
at a cost that would not reasonably be expected to have a Material Adverse Effect;
(cc) The statistical and market related data contained in the Pricing Prospectus and
the Prospectus are based on or derived from sources which the Company believes are reliable
and accurate;
(dd) No relationship, direct or indirect, exists between or among the Company or any of
its subsidiaries, on the one hand, and the directors, officers,
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stockholders, customers or suppliers of the Company or any of its subsidiaries, on the
other, that is required by the Act or by the rules and regulations of the Commission
thereunder to be described in the Registration Statement, the Pricing Disclosure Package
and/or the Prospectus and that is not so described;
(ee) There is and has been no failure on the part of the Company or any of its
directors or officers, in their capacities as such, to comply in all material respects with
any provision of the Sarbanes-Oxley Act and the rules and regulations promulgated in
connection therewith, including Section 402 related to loans and Sections 302 and 906
related to certifications;
(ff) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries has (A) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (B) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (C) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or (D) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment;
(gg) No person has the right to require the Company or any of its subsidiaries to
register any securities for sale under the Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the Securities to be sold by the
Company hereunder;
(hh) No forward-looking statement (within the meaning of Section 27A of the 1933 Act
and Section 21E of the Exchange Act) contained in the Registration Statement, the Pricing
Disclosure Package and the Prospectus has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith;
(ii) Other than as contemplated by this Agreement, there is no broker, finder or other
party that is entitled to receive from the Company or any subsidiary any brokerage or
finder’s fee or any other fee, commission or payment as a result of the transactions
contemplated by this Agreement;
(jj) The Company and each of the subsidiaries or their “ERISA Affiliates” (as defined
below) are in compliance in all material respects with all presently applicable provisions
of the Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder (“ERISA”); no “reportable event” (as
defined in ERISA) has occurred with respect to any “employee benefit plan” (as defined in
ERISA) for which the Company or any of the subsidiaries or ERISA Affiliates would have any
liability; the Company and each of the subsidiaries or their ERISA Affiliates have not
incurred and do not expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971,
4975 or 4980B of the United States Internal Revenue Code of 1986, as amended, and the
regulations and published interpretations thereunder (collectively the “Code”); and each
“employee benefit plan” for which the
12
Company and each of its subsidiaries or any of their ERISA Affiliates would have any
liability that is intended to be qualified under Section 401(a) of the Code is so qualified
in all material respects and nothing as occurred, whether by action or by failure to act,
which would cause the loss of such qualification. “ERISA Affiliate” means, with respect to
the Company or a subsidiary, any member of any group of organizations described in Sections
414(b), (c), (m) or (o) of the Code or Section 400(b) of ERISA of which the Company or such
subsidiary is a member;
(kk) Each of the Company and its subsidiaries has good and marketable title to all
securities held by it (except securities sold under repurchase agreements or held in any
fiduciary or agency capacity) free and clear of any lien, claim, charge, option,
encumbrance, mortgage, pledge or security interest or other restriction of any kind, except
to the extent such securities are pledged in the ordinary course of business consistent with
prudent business practices to secure obligations of the Company or any of its subsidiaries
and except for such defects in title or liens, claims, charges, options, encumbrances,
mortgages, pledges or security interests or other restrictions of any kind that would not be
material to the Company and its subsidiaries taken as a whole. Such securities are valued on
the books of the Company and its subsidiaries in accordance with GAAP;
(ll) Any and all material swaps, caps, floors, futures, forward contracts, option
agreements (other than employee stock options) and other derivative financial instruments,
contracts or arrangements, whether entered into for the account of the Company or one of its
subsidiaries or for the account of a customer of the Company or one of its subsidiaries,
were entered into in the ordinary course of business and in accordance with applicable laws,
rules, regulations and policies of all applicable regulatory agencies and with
counterparties believed to be financially responsible at the time. The Company and each of
its subsidiaries have duly performed in all material respects all of their obligations
thereunder to the extent that such obligations to perform have accrued, and there are no
breaches, violations or defaults or allegations or assertions of such by any party
thereunder;
(mm) BW Real Estate, Inc. is organized and carries on its business so as to enable it
to qualify as a “real estate investment trust” (a “REIT”) under Sections 856 through 860 of
the Code, and no transaction or other event has occurred or is expected to occur that would
be reasonably likely to cause BW Real Estate, Inc. to not qualify as a REIT for its current
taxable year or for future taxable years;
(nn) The Company is a registered bank holding company under the Bank Holding Company
Act of 1956, as amended. Each of the Company’s subsidiaries that are banks (each, a “Bank”
and collectively, the “Banks”) holds the requisite authority from its state bank regulatory
authority to do business as a state-chartered bank under the laws of its jurisdiction of
incorporation. Each of the Company and its subsidiaries is in compliance in all material
respects with all laws administered by, and all rules and regulations of the Federal
Reserve, the FDIC, the California Department of Financial Institutions (the “California
DFI”),
13
the Nevada Financial Institutions Division (the “Nevada FID”), and the Arizona
Department of Financial Institutions (the “Arizona DFI”), as applicable, and any other
federal or state bank regulatory authority with jurisdiction over the Company or any
subsidiary (collectively, “Bank Regulatory Authorities”), except as disclosed in the Pricing
Disclosure Package and the Prospectus; and, except as disclosed in the Pricing Disclosure
Package and the Prospectus, neither the Company nor any of its banking subsidiaries is a
party to any written agreement or memorandum of understanding with, or a party to any
commitment letter or similar undertaking to, or is subject to any order or directive by, or
is a recipient of any extraordinary supervisory letter from, or has adopted any board of
director resolutions at the request of, any Bank Regulatory Authority, nor have any of them
been advised by any Bank Regulatory Authority that it is contemplating issuing or requesting
(or is considering the appropriateness of issuing or requesting) any such order, decree,
agreement, memorandum of understanding, extraordinary supervisory letter, commitment letter
or similar submission, or any such board of director resolutions; the deposit accounts of
each of the Banks are insured up to the applicable limits by the FDIC;
(oo) Except as disclosed in the Pricing Disclosure Package and the Prospectus, the
Company and its subsidiaries conduct their respective businesses in compliance in all
material respects with all federal, state, local and foreign statutes, laws, rules,
regulations, decisions, directives and orders applicable to them (including, without
limitation, all applicable regulations and orders of, the Equal Credit Opportunity Act, the
Fair Housing Act, the Community Reinvestment Act, the Home Mortgage Disclosure Act, all
other applicable fair lending laws or other laws relating to discrimination, the Bank
Secrecy Act, Title III of the USA Patriot Act, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency); and
(pp) Other than the Bank of Nevada, Torrey Pines Bank, Alliance Bank of Arizona and
First Independent Bank, no Bank is currently prohibited, directly or indirectly, from (i)
paying any dividends to the Company without prior approval, which payment would otherwise be
payable under federal or state banking laws or regulations, (ii) making any other
distribution on such Bank’s capital stock, (iii) repaying to the Company any loans or
advances to such Bank from the Company or (iv) transferring any of such Bank’s property or
assets to the Company or any other subsidiary of the Company;
(qq) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance in all material respects with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, money laundering statutes of all jurisdictions applicable to the Company and its
subsidiaries, the rules and regulations thereunder and any related or similar rules
regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”), and no material action, suit or proceeding by
or before any court or governmental agency, authority or body or any arbitrator
14
involving the Company or any of its subsidiaries with respect to the Money Laundering
Laws is pending or, to the knowledge of the Company, threatened; and
(rr) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(ss) The Registration Statement is not the subject of a pending proceeding or
examination under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a
pending proceeding under Section 8A of the Act in connection with the offering of the
Securities.
(tt) Neither the Company nor any of its Subsidiaries, nor any affiliates of the Company
or its Subsidiaries, has taken, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price
of the Securities.
(uu) The Company has not distributed and, prior to the later to occur of (i) the
Closing Date and (ii) completion of the distribution of the Securities, will not distribute
any prospectus (as such term is defined in the Act and the rules and regulations thereunder)
in connection with the offering and sale of the Securities other than the Registration
Statement, any preliminary prospectus, the Prospectus or other materials, if any, permitted
by the Act or by the rules and regulations thereunder and approved by the Underwriters.
2. The Company agrees to issue and sell the Securities to the several Underwriters as provided
in this Agreement, and each Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the respective principal amount of Securities set forth
opposite such Underwriter’s name in Schedule I hereto at a price equal to 97.125% of the principal
amount thereof plus accrued interest, if any, from August 25, 2010 to the Closing Date (as defined
below). The Company will not be obligated to deliver any of the Securities except upon payment for
all the Securities to be purchased as provided herein.
3. The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representatives is advisable, and initially to offer the Securities on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Securities
to or through any affiliate of an Underwriter and that any such affiliate may offer and sell
Securities purchased by it to or through any Underwriter.
15
4. The documents to be delivered at the Closing Date by or on behalf of the parties hereto
pursuant to Section 8 hereof, including the cross-receipt for the Securities and any additional
documents requested by the Representatives pursuant to Section 8(i) hereof, will be made at the
offices of Skadden, Arps, Slate, Meagher & Flom LLP, 300 South Grand Avenue, Suite 3400, Los
Angeles, California 90071 at 10:00 A.M., New York City time, on August 25, 2010, or at such other
time or place on the same or such other date, not later than the fifth business day thereafter, as
the Representatives and the Company may agree upon in writing. The time and date of such payment
and delivery is referred to herein as the “Closing Date”.
Payment for the Securities shall be made by wire transfer in immediately available funds to
the account(s) specified by the Company to the Representatives against delivery to the nominee of
The Depository Trust Company, for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representatives not later than 1:00 P.M., New York City time, on
the business day prior to the Closing Date.
5. The Company agrees with the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on
the second business day following the date of this Agreement or such earlier time as may be
required under the Act; to make no further amendment or any supplement to the Registration
Statement, the Basic Prospectus or the Prospectus prior to the Closing Date, which shall be
disapproved by you promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to the Prospectus has been
filed and to furnish you with copies thereof; to prepare a final term sheet, containing
solely a description of the Securities, in a form approved by you and to file such term
sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; to file
promptly all other material required to be filed by the Company with the Commission pursuant
to Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required in connection with the offering or
sale of the Securities; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or other prospectus in respect of the Securities, of the
suspension of the qualification of the Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the Registration Statement or the
Prospectus or for additional
16
information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or other prospectus or
suspending any such qualification, to promptly use its best efforts to obtain the withdrawal
of such order;
(b) Promptly from time to time to take such action as you may reasonably request to
qualify the Securities for offering and sale under the securities laws of such jurisdictions
as you may request and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Securities, provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) If by the third anniversary (the “Renewal Deadline”) of the initial effective date
of the Registration Statement, any of the Securities remain unsold by the Underwriters, the
Company will file, if it has not already done so and is eligible to do so, a new shelf
registration statement relating to the Securities, in a form satisfactory to the
Representatives and will use its best efforts to cause such registration statement to be
declared effective within 180 days after the Renewal Deadline. The Company will take all
other action necessary or appropriate to permit the public offering and sale of the
Securities to continue as contemplated in the expired registration statement relating to the
Securities. References herein to the Registration Statement shall include such new
automatic shelf registration statement or such new shelf registration statement, as the case
may be;
(d) Prior to 10:00 a.m., New York City time, on the New York Business Day next
succeeding the date of this Agreement and from time to time, to furnish the Underwriters
with written and electronic copies of the Prospectus in New York City in such quantities as
you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in connection with the
offering or sale of the Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made when
such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to you and to any dealer in securities as
many written and electronic copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such statement or
omission or effect such
17
compliance; and in case you are required to deliver a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the
Securities at any time nine months or more after the time of issue of the Prospectus, upon
your request and at your expense, to prepare and deliver to you as many written and
electronic copies as you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(e) To make generally available to its security holders as soon as practicable, but in
any event not later than sixteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(f) During the period beginning from the date hereof and continuing to and including
the date 90 days after the date of the Prospectus, not to offer, sell, contract to sell,
pledge, grant any option to purchase, make any short sale or otherwise dispose, except as
provided hereunder, of any securities of the Company that are substantially similar to the
Securities;
(g) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule
462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00
p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the
time of filing either pay the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act;
(h) Upon your request, to furnish, or cause to be furnished, to you an electronic
version of the Company’s trademarks, servicemarks and corporate logo for use on the website,
if any, operated by you for the purpose of facilitating the on-line offering of the
Securities (the “License”); provided, however, that the License shall be used solely for the
purpose described above, is granted without any fee and may not be assigned or transferred;
and
(i) To use the net proceeds received by it from the sale of the Securities in the
manner specified in the Pricing Prospectus under the caption “Use of Proceeds”.
(j) The Company, during the period when the Prospectus is required to be delivered
under the Act or the Exchange Act, will file all documents required to be filed with the
Commission pursuant to the Exchange Act within the time periods required by the Exchange Act
and the rules and regulations thereunder.
6. (a) (i) The Company represents and agrees that, other than the final term sheet prepared
and filed pursuant to Section 5(a) hereof, without the prior consent of the Representatives,
it has not made and will not make any offer relating to the Securities that would constitute
a “free writing prospectus” as defined in Rule 405 under the Act; and
18
(ii) any such free writing prospectus the use of which has been consented to by the
Company and you (including the final term sheet prepared and filed pursuant to Section 5(a)
hereof) is listed on Schedule II(a) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under
the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the
Commission or retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing
Prospectus would conflict with the information in the Registration Statement, the Pricing
Prospectus or the Prospectus or would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light
of the circumstances then prevailing, not misleading, the Company will give prompt notice
thereof to you and, if requested by you, will prepare and furnish without charge to you an
Issuer Free Writing Prospectus or other document which will correct such conflict, statement
or omission; provided, however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by you expressly for use
therein.
7. The Company covenants and agrees with the Underwriters that the Company will pay or cause
to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and
accountants in connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing, reproduction and filing of the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and
the Prospectus and amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriter and dealers; (ii) the cost of printing or producing this Agreement, the
Indenture, any Blue Sky Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriter in connection with such qualification and in
connection with the Blue Sky survey(s); (iv) any fees charged by securities rating services for
rating the Securities; (v) any filing fees incident to, and the fees and disbursements of counsel
for the Underwriter in connection with, any required reviews by the Financial Industry Regulatory
Authority of the terms of the sale of the Securities; (vi) the cost of preparing certificates for
the Securities; (vii) the cost and charges of any transfer agent or registrar or dividend
disbursing agent; (viii) the costs and expenses of the Company relating to investor presentations
on any “road show” undertaken in connection with the marketing of the Securities, including without
limitation, expenses associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show presentations, travel and
lodging expenses of the representatives and officers of the Company and any such consultants, and
the cost of
19
aircraft and other transportation chartered in connection with the road show, (ix) the fees
and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Securities; and (x) all other costs and
expenses incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that, except as provided in
this Section, and Sections 9 and 12 hereof, the Underwriters will pay all of its own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters hereunder, as to the Securities to be delivered at the
Closing Date shall be subject, in their discretion, to the condition that all representations and
warranties and other statements of the Company herein are, at and as of the Closing Date, true and
correct, the condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet
contemplated by Section 5(a) hereof, and any other material required to be filed by the
Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission
within the applicable time period prescribed for such filings by Rule 433; if the Company
has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement
shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this
Agreement; no stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; no stop order suspending or preventing the use of
the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened
by the Commission; and all requests for additional information on the part of the Commission
shall have been complied with to your reasonable satisfaction;
(b) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, shall have
furnished to you such written opinion or opinions, dated the Closing Date, which shall
address the matters as you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass upon such
matters;
(c) Each of DLA Piper LLP (US), counsel for the Company, Randall S. Theisen, General
Counsel of the Company, and Jones Vargas, special local counsel for the Company, shall have
furnished to you its or his written opinion, dated the Closing Date, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced copies of
such opinion for the Underwriters;
(d) On the date hereof, on the effective date of any post effective amendment to the
Registration Statement filed subsequent to the date of this
20
Agreement and also at the Closing Date, McGladrey & Pullen LLP shall have furnished to
you a letter or letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to the Representatives, to the effect set forth in Annex I hereto
(the executed copy of the letter delivered upon the execution of this Agreement is attached
as Annex I(a) hereto and a form of letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement, and as of the Closing Date, is
attached as Annex I(b) hereto);
(e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the
date of the latest audited financial statements included or incorporated by reference in the
Pricing Prospectus any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or contemplated in the
Pricing Prospectus, and (ii) since the respective dates as of which information is given in
the Pricing Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries, taken as whole, or any change, or
any development involving a prospective change, in or affecting the general affairs,
management, financial position, condition (financial or otherwise), stockholders’ equity or
results of operations of the Company and its subsidiaries, taken as a whole
whether or not arising in the ordinary course of business, otherwise than as set forth
or contemplated in the Pricing Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus;
(f) On or after the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the Company’s debt securities or preferred stock by any “nationally
recognized statistical rating organization”, as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative implications, its
rating of any of the Company’s debt securities or preferred stock;
(g) On or after the Applicable Time there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally on the NYSE; (ii)
a suspension or material limitation in trading in the Company’s securities on the NYSE, or
if trading generally on the American Stock Exchange or the NYSE or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said exchanges
or by such system or by order of the Commission, FINRA or any other governmental authority;
(iii) a general moratorium on commercial banking activities declared by either Federal or
New York, California, Nevada or Arizona State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United States; (iv)
if there has occurred any material adverse
21
change in the financial markets in the United States, the outbreak or escalation of
hostilities involving the United States or the declaration by the United States of a
national emergency or war; or (v) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions in the United States or elsewhere, if
the effect of any such event specified in clause (iv) or (v) in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery of the
Securities being delivered at the Closing Date on the terms and in the manner contemplated
in the Prospectus;
(h) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York Business Day next
succeeding the date of this Agreement; and
(i) The Company shall have furnished or caused to be furnished to you at the
Closing Date, certificates of officers of the Company satisfactory to the Representatives as
to the accuracy of the representations and warranties of the Company herein at and as of the
Closing Date as to the performance by the Company of all of its obligations hereunder to be
performed at or prior to the Closing Date as to the matters set forth in subsections (a) and
(e) of this Section and as to such other matters as you may reasonably request.
9. (a) The Company will indemnify and hold harmless each Underwriter, its affiliates (as such
term is defined in rule 501(b) under the 1933 Act) (“Affiliates”), its selling agents, and each
person, if any, who controls any Underwriters within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any losses, claims, damages or liabilities, joint or several, to
which the Underwriters may become subject, (i) under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any
“issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise
out of or are based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, (ii) to the extent
of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or omission; provided that
(subject to Section 9(d) below) any such settlement is effected with the written consent of the
Company; and (iii) reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not paid under (i),
(ii) or (iii) above; provided, however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the
22
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer
Free Writing Prospectus, in reliance upon and in conformity with written information furnished to
the Company by the Underwriters through the Representatives expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company and its directors and
officers who sign the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any losses,
claims, damages or liabilities to which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in
conformity with written information furnished to the Company by the Underwriters through the
Representatives expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the prior written consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional
23
release of the indemnified party from all liability arising out of such action or claim and
(ii) does not include any statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by Section 9(a) (ii) effected
without its written consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the Underwriters on the
other and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (e) were determined by
pro rata
allocation or by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this subsection (e), the
Underwriters shall not be required to contribute
24
any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which the Underwriters has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Underwriters within the meaning of the Act and each broker-dealer
affiliate of the Underwriters; and the obligations of the Underwriters under this Section 9 shall
be in addition to any liability which the Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
10. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or on behalf of the
Underwriters or any controlling person of the Underwriters, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Securities.
11. If, for any reason, any Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse you for all out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred by you in making preparations for the purchase, sale
and delivery of the Securities not so delivered, but the Company shall then be under no further
liability to you except as provided in Sections 7 and 9 hereof.
12. (a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the
Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Securities by other persons satisfactory to the Company
on the terms contained in this Agreement. If, within 36 hours after any such default by any
Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities,
then the Company shall be entitled to a further period of 36 hours within which to procure other
persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms.
If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter,
either the non-defaulting Underwriters or the Company may postpone the Closing Date for up to five
full business days in order to effect any changes that in the opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus or
in any other document or arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Registration Statement and the Prospectus that effects any such changes. As used
in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement
25
unless the context otherwise requires, any person not listed in Schedule I hereto that,
pursuant to this Section 12, purchases Securities that a defaulting Underwriter agreed but failed
to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities,
then the Company shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase hereunder plus such
Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter
agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters. Any termination of this
Agreement pursuant to this Section 12 shall be without liability on the part of the Company, except
that the Company will continue to be liable for the payment of expenses as set forth in Section 7
hereof and except that the provisions of Section 9 hereof shall not terminate and shall remain in
effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
13. All statements, requests, notices and agreements hereunder shall be in writing, and if to
the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to the
Representatives, c/o Keefe, Bruyette & Woods, Inc. at 787 Seventh Avenue, 4th Floor, New York, New
York 10019, Attention: General Counsel, and Goldman, Sachs & Co., 200 West Street, New York, New
York 10282-2198, Attention: Registration Department; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Chief Financial Officer. Any such statements, requests, notices
or agreements shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters is required to obtain, verify and record
information that identifies its clients, including the Company, which information may include the
name and address of its clients, as well as other information that will allow the Underwriters to
properly identify its clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 10 hereof, the
26
officers and directors of the Company and each person who controls the Company or the
Underwriters, and their respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from the Underwriters shall be deemed a successor or assign by reason merely
of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement, including the determination of the public offering price of the
Securities and any related discounts and commissions, is an arm’s-length commercial transaction
between the Company, on the one hand, and the Underwriters, on the other, (ii) in connection
therewith and with the process leading to such transaction the Underwriters is acting solely as a
principal and not the agent or fiduciary of the Company or its shareholders, creditors,
employees or any other third party, (iii) the Underwriters has not assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether the Underwriters has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.
16. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters with respect to the subject matter hereof.
17. THIS AGREEMENT AND ANY MATTERS RELATED TO THIS TRANSACTION SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAWS OF THE STATE
OF NEW YORK. The Company agrees that any suit or proceeding arising in respect of this agreement
or our engagement will be tried exclusively in the U.S. District Court for the Southern District of
New York or, if that court does not have subject matter jurisdiction, in any state court located in
The City and County of New York and the Company agrees to submit to the jurisdiction of, and to
venue in, such courts.
18. The Company and the Underwriters hereby irrevocably waive, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
19. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
27
20. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons U.S. federal and state tax treatment and tax structure of the potential transaction and
all materials of any kind (including tax opinions and other tax analyses) provided to the Company
relating to that treatment and structure, without the Underwriters imposing any limitation of any
kind. However, any information relating to the tax treatment and tax structure shall remain
confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any
person to comply with securities laws. For this purpose, “tax structure” is limited to any facts
that may be relevant to that treatment.”
28
If the foregoing is in accordance with your understanding, please sign and return to us
counterparts hereof, and upon the acceptance hereof by you this letter and such acceptance hereof
shall constitute a binding agreement between the Underwriters and the Company.
Very truly yours,
Western Alliance Bancorporation
By:
/s/ Randall S. Theisen
Name: Randall S. Theisen
Title: General Counsel
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CONFIRMED AND ACCEPTED,
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as of the date first above written:
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KEEFE BRUYETTE & WOODS, INC.
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By
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Jeffrey D. Evans
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Authorized Signatory
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GOLDMAN, SACHS & CO.
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By:
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Goldman, Sachs & Co.
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(Goldman, Sachs & Co.)
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For themselves and on behalf of the several Underwriters
listed on Schedule I hereto
[Signature Page to Underwriting Agreement]
SCHEDULE I
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Underwriter
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Principal Amount
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Keefe, Bruyette & Woods, Inc.
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$
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63,000,000
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Goldman, Sachs & Co.
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12,000,000
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Total
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$
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75,000,000
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SCHEDULE II
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(a)
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Issuer Free Writing Prospectuses: Final Term Sheet dated August 20, 2010
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(b)
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Additional Documents Incorporated by Reference: None
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Exhibit 4.1
WESTERN ALLIANCE BANCORPORATION,
Issuer
to
WELLS FARGO BANK, NATIONAL ASSOCIATION,
Trustee
SENIOR DEBT INDENTURE
Dated as of August 25, 2010
Senior Debt Securities
Reconciliation and tie between
Trust Indenture Act of 1939 (the “Trust Indenture Act”)
and Indenture
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Trust Indenture
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Act Section
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Indenture Section
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§310
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(a)(1)
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607
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(a)(2)
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607
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(b)
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608
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§312
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(a)
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701
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(b)
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702
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(c)
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702
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§313
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(a)
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703
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(b)(2)
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703
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(c)
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703
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(d)
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703
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§314
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(a)
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704
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(c)(1)
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102
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(c)(2)
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102
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(e)
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102
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(f)
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102
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§316(a) (last sentence)
|
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101
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(a)(1)(A)
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502, 512
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(a)(1)(B)
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513
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(b)
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508
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§317
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(a)(1)
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503
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(a)(2)
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504
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(b)
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1003
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§318
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(a)
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108
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.
-i-
TABLE OF CONTENTS
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Page
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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1
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Section 101 Definitions
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1
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Section 102 Compliance Certificates and Opinions
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9
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Section 103 Form of Documents Delivered to Trustee
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10
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Section 104 Acts of Holders
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10
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Section 105 Notices, etc. to Trustee and Company
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12
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Section 106 Notice to Holders of Securities; Waiver
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12
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Section 107 Language of Notices
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13
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Section 108 Conflict with Trust Indenture Act
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13
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Section 109 Effect of Headings and Table of Contents
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13
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Section 110 Successors and Assigns
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14
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Section 111 Separability Clause
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14
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Section 112 Benefits of Indenture
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14
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Section 113 Governing Law
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14
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Section 114 Legal Holidays
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14
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Section 115 Counterparts
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14
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Section 116 Judgment Currency
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14
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Section 117 Extension of Payment Dates
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15
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Section 118 Immunity of Stockholders, Directors, Officers and Agents of the
Company
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15
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Section 119 Waiver of Jury Trial
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15
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Section 120 Force Majeure
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16
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ARTICLE TWO SECURITIES FORMS
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16
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Section 201 Forms Generally
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16
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Section 202 Form of Trustee’s Certificate of Authentication
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16
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Section 203 Securities in Global Form
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17
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ARTICLE THREE THE SECURITIES
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17
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Section 301 Amount Unlimited; Issuable in Series
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17
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Section 302 Currency; Denominations
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22
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Section 303 Execution, Authentication, Delivery and Dating
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22
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Section 304 Temporary Securities
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23
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-i-
TABLE OF CONTENTS
(continued)
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Page
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Section 305 Registration, Transfer and Exchange
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24
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Section 306 Mutilated, Destroyed, Lost and Stolen Securities
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28
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Section 307 Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved
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29
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Section 308 Persons Deemed Owners
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30
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Section 309 Cancellation
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31
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Section 310 Computation of Interest
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31
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ARTICLE FOUR SATISFACTION AND DISCHARGE OF INDENTURE
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32
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Section 401 Satisfaction and Discharge
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32
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Section 402 Defeasance and Covenant Defeasance
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33
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Section 403 Application of Trust Money
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38
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Section 404 Reinstatement
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38
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ARTICLE FIVE REMEDIES
|
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38
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Section 501 Events of Default
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38
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Section 502 Acceleration of Maturity; Rescission and Annulment
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40
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Section 503 Collection of Indebtedness and Suits for Enforcement by Trustee
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41
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Section 504 Trustee May File Proofs of Claim
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42
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Section 505 Trustee May Enforce Claims without Possession of Securities or
Coupons
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43
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Section 506 Application of Money Collected
|
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43
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Section 507 Limitations on Suits
|
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43
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|
Section 508 Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts
|
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44
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Section 509 Restoration of Rights and Remedies
|
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44
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Section 510 Rights and Remedies Cumulative
|
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|
45
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|
|
Section 511 Delay or Omission Not Waiver
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45
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Section 512 Control by Holders of Securities
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45
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Section 513 Waiver of Past Defaults
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45
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Section 514 Waiver of Usury, Stay or Extension Laws
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46
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Section 515 Undertaking for Costs
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46
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ARTICLE SIX THE TRUSTEE
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47
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Section 601 Certain Rights of Trustee
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47
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Section 602 Notice of Defaults
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48
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-ii-
TABLE OF CONTENTS
(continued)
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Page
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Section 603 Not Responsible for Recitals or Issuance of Securities
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49
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Section 604 May Hold Securities
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49
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Section 605 Money Held in Trust
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49
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Section 606 Compensation and Reimbursement
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49
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Section 607 Corporate Trustee Required; Eligibility
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50
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Section 608 Resignation and Removal; Appointment of Successor
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50
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Section 609 Acceptance of Appointment by Successor
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52
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Section 610 Merger, Conversion, Consolidation or Succession to Business
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53
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Section 611 Appointment of Authenticating Agent
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53
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ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
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55
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Section 701 Company to Furnish Trustee Names and Addresses of Holders
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55
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Section 702 Preservation of Information; Communications to Holders
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55
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Section 703 Reports by Trustee
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55
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Section 704 Reports by Company
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56
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ARTICLE EIGHT CONSOLIDATION, MERGER AND SALES
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57
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Section 801 Company May Consolidate, Etc., Only on Certain Terms
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57
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Section 802 Successor Person Substituted for Company
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58
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ARTICLE NINE SUPPLEMENTAL INDENTURES
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58
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Section 901 Supplemental Indentures without Consent of Holders
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58
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Section 902 Supplemental Indentures with Consent of Holders
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60
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Section 903 Execution of Supplemental Indentures
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61
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Section 904 Effect of Supplemental Indentures
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61
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Section 905 Reference in Securities to Supplemental Indentures
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62
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Section 906 Conformity with Trust Indenture Act
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62
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ARTICLE TEN COVENANTS
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62
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Section 1001 Payment of Principal, Premium, Interest and Additional Amounts
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62
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Section 1002 Maintenance of Office or Agency
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62
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Section 1003 Money for Securities Payments to Be Held in Trust
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64
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Section 1004 Additional Amounts
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65
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Section 1005 Corporate Existence
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66
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-iii-
TABLE OF CONTENTS
(continued)
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Page
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Section 1006 Maintenance of Properties
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66
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Section 1007 Waiver of Certain Covenants
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66
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Section 1008 Company Statement as to Compliance
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67
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ARTICLE ELEVEN REDEMPTION OF SECURITIES
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67
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Section 1101 Applicability of Article
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67
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Section 1102 Election to Redeem; Notice to Trustee
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67
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Section 1103 Selection by Trustee of Securities to be Redeemed
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67
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Section 1104 Notice of Redemption
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68
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Section 1105 Deposit of Redemption Price
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70
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Section 1106 Securities Payable on Redemption Date
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70
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Section 1107 Securities Redeemed in Part
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71
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ARTICLE TWELVE SINKING FUNDS
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71
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Section 1201 Applicability of Article
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71
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Section 1202 Satisfaction of Sinking Fund Payments with Securities
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72
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Section 1203 Redemption of Securities for Sinking Fund
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72
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ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS
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73
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Section 1301 Applicability of Article
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73
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ARTICLE FOURTEEN SECURITIES IN FOREIGN CURRENCIES
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73
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Section 1401 Applicability of Article
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73
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ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES
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74
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Section 1501 Purposes for Which Meetings May Be Called
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74
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Section 1502 Call, Notice and Place of Meetings
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74
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Section 1503 Persons Entitled to Vote at Meetings
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74
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Section 1504 Quorum; Action
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75
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Section 1505 Determination of Voting Rights; Conduct and Adjournment of
Meetings
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75
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Section 1506 Counting Votes and Recording Action of Meetings
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76
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SENIOR DEBT INDENTURE, dated as of August 25, 2010 (the “Indenture”), between Western Alliance
Bancorporation, a corporation duly organized and existing under the laws of the State of Nevada
(hereinafter called the “Company”), having its principal executive office located at 2700 West
Sahara Avenue, Las Vegas, Nevada 89102, and Wells Fargo Bank, National Association, a national
banking association (hereinafter called the “Trustee”).
RECITALS
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its senior unsecured debentures, notes or other evidences of
indebtedness (hereinafter called the “Securities”), unlimited as to principal amount, to bear such
rates of interest, to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this Indenture. All things
necessary to make this Indenture a valid agreement of the Company, in accordance with its terms,
have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Securities and Exchange Commission promulgated thereunder that
are required to be part of this Indenture and, to the extent applicable, shall be governed by such
provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders (as
herein defined) thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series thereof and any Coupons (as herein
defined) as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 101
Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or unless the context
otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to them in this Article, and
include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act either directly
or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP;
(4) the words “herein”, “hereof”, “hereto” 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;
(5) the word “or” is always used inclusively (for example, the phrase “A or B” means “A or B
or both”, not “either A or B but not both”);
(6) provisions apply to successive events and transactions;
(7) the term “merger” includes a statutory share exchange and the terms “merge” and “merged”
have correlative meanings;
(8) the masculine gender includes the feminine and the neuter; and
(9) references to agreements and other instruments include subsequent amendments and
supplements thereto.
Certain terms used principally in certain Articles hereof are defined in those Articles.
“Act”, when used with respect to any Holders, has the meaning specified in Section 104.
“Additional Amounts” means any additional amounts which are required by this Indenture or by
any Security, or by the terms of any Security established pursuant to Section 301, under
circumstances specified herein or therein, to be paid by the Company in respect of certain taxes,
duties, levies, imposts, assessments or other governmental charges imposed on Holders specified
herein or therein.
“Affiliate” means, with respect to any specified Person, 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” means any Person authorized by the Trustee pursuant to Section 611 to
act on behalf of the Trustee to authenticate Securities of one or more series.
“Authorized Newspaper” means a newspaper, in an official language of the place of publication
or in the English language, customarily published on each day that is a Business Day in the place
of publication, whether or not published on days that are not Business Days in the place of
publication, and of general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are required to be
made in Authorized Newspapers, the successive publications may be made in the same or in different
newspapers in the same place meeting the foregoing requirements and in each case on any day that is
a Business Day in the place of publication.
“Bearer Security” means any Security in the form established pursuant to Section 201 which is
payable to bearer.
“Board of Directors” means the board of directors of the Company or any committee of that
board duly authorized to act generally or in any particular respect for the Company hereunder.
-2-
“Board Resolution” means a copy of one or more resolutions, certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, delivered to the Trustee.
“Business Day” means, unless otherwise specified with respect to the Securities of any series
pursuant to Section 301, any day other than a Saturday, Sunday or other day on which banking
institutions in The City of New York or Las Vegas, Nevada are authorized or obligated by law,
regulation or executive order to close; provided that such term shall mean, when used with respect
to any payment of principal of, or premium or interest, if any, on, or Additional Amounts with
respect to, the Securities of any series to be made at any Place of Payment for such Securities,
unless otherwise specified pursuant to Section 301 with respect to such Securities, any day other
than a Saturday, Sunday or other day on which banking institutions in such Place of Payment are
authorized or obligated by law, regulation or executive order to close.
“Commission” means the Securities and Exchange Commission, as from time to time constituted,
or, if at any time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the body performing
such duties at such time.
“Common Stock” includes any stock of any class of the Company which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which is not subject to redemption by the
Company.
“Company” means the Person named as the “Company” in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person and any other obligor upon the
Securities.
“Company Request” and “Company Order” mean, respectively, a written request or order, as the
case may be, signed in the name of the Company by the Chairman, the Chief Executive Officer, the
President or a Vice President, and by the Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee.
“Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government
of the country or the confederation which issued such Foreign Currency and for the settlement of
transactions by a central bank or other public institutions of or within the international banking
community or (ii) any currency unit or composite currency for the purposes for which it was
established.
“Corporate Trust Office” means the principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the dated hereof is located at MAC
N9311-110, 625 Marquette Avenue, Minneapolis, Minnesota 55479, 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 office 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).
“corporation” includes corporations, partnerships, associations, limited liability companies
and other companies, real estate investment trusts, and business trusts.
-3-
“Coupon” means any interest coupon appertaining to a Bearer Security.
“Currency”, with respect to any payment, deposit or other transfer in respect of the principal
of or any premium or interest on or any Additional Amounts with respect to any Security, means
Dollars or the Foreign Currency, as the case may be, in which such payment, deposit or other
transfer is required to be made by or pursuant to the terms hereof or such Security and, with
respect to any other payment, deposit or transfer pursuant to or contemplated by the terms hereof
or such Security, means Dollars.
“CUSIP number” means the alphanumeric designation assigned to a Security by Standard & Poor’s
CUSIP Service Bureau.
“Defaulted Interest” has the meaning specified in Section 307.
“Depository” means, with respect to any Security issuable or issued in the form of one or more
global Securities, the Person designated as depository by the Company in or pursuant to this
Indenture, and, unless otherwise provided with respect to any Security, any successor to such
Person. If at any time there is more than one such Person, “Depository” shall mean, with respect to
any Securities, the depository which has been appointed with respect to such Securities.
“Dollars” or “$” means a dollar or other equivalent unit of legal tender for payment of public
or private debts in the United States of America.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor
thereto, in each case as amended from time to time.
“Foreign Currency” means any currency, currency unit or composite currency issued by the
government of one or more countries other than the United States of America or by any recognized
confederation or association of such government.
“GAAP” and “generally accepted accounting principles” mean, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, such accounting principles as are
generally accepted in the United States of America as of the date or time of any computation
required hereunder.
“Government Obligations” means securities which are (i) direct obligations of the United
States of America or the other government or governments in the confederation which issued the
Foreign Currency in which the principal of or any premium or interest on the relevant Security or
any Additional Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such government or governments or
(ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such other government or governments, in each case where the
timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government or governments, and which, in
the case of (i) or (ii), are not callable or redeemable at the option of the issuer or issuers
thereof, and shall also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest on or principal of
or other amount with respect to any such Government
-4-
Obligation held by such custodian for the account of the holder of a depository 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 depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation evidenced by such depository
receipt.
“Holder”, in the case of any Registered Security, means the Person in whose name such Security
is registered in the Security Register and, in the case of any Bearer Security, means the bearer
thereof and, in the case of any Coupon, means the bearer thereof.
“Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and, with respect to any Security, by the terms and provisions of such
Security and any Coupon appertaining thereto established pursuant to Section 301 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof), provided, however, that,
if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall
mean, with respect to any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of those particular series of Securities for which such Person is
Trustee established pursuant to Section 301, exclusive, however, of any provisions or terms which
relate solely to other series of Securities for which such Person is not Trustee, regardless of
when such terms or provisions were adopted.
“Indexed Security” means a Security the terms of which provide that the principal amount
thereof payable at Stated Maturity may be more or less than the principal face amount thereof at
original issuance.
“interest”, with respect to any Original Issue Discount Security which by its terms bears
interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date”, with respect to any Security, means the Stated Maturity of an
installment of interest on such Security.
“Judgment Currency” has the meaning specified in Section 116.
“Maturity”, with respect to any Security, means the date on which the principal of such
Security or an installment of principal becomes due and payable as provided in or pursuant to this
Indenture or such Security, whether at the Stated Maturity or by declaration of acceleration, upon
redemption at the option of the Company, upon repurchase or repayment at the option of the Holder
or otherwise, and includes a Redemption Date for such Security and a date fixed for the repurchase
or repayment of such Security at the option of the Holder.
“New York Banking Day” has the meaning specified in Section 116.
“Office” or “Agency”, with respect to any Securities, means an office or agency of the Company
maintained or designated in a Place of Payment for such Securities pursuant to Section 1002 or any
other office or agency of the Company maintained or designated for such Securities pursuant to
-5-
Section 1002 or, to the extent designated or required by Section 1002 in lieu of such office
or agency, the Corporate Trust Office of the Trustee.
“Officers’ Certificate” means a certificate signed by the Chairman, the Chief Executive
Officer, the President or a Vice President, and by the Treasurer, the Secretary or an Assistant
Secretary of the Company, that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel
for the Company or other counsel, that, if required by the Trust Indenture Act, complies with the
requirements of Section 314(e) of the Trust Indenture Act.
“Original Issue Discount Security” means a Security issued pursuant to this Indenture which
provides for an amount less than the principal face amount thereof to be due and payable upon
declaration of acceleration pursuant to Section 502.
“Outstanding”, when used with respect to any Securities, means, as of the date of
determination, all such Securities theretofore authenticated and delivered under this Indenture,
except:
|
|
(a)
|
|
any such Security theretofore cancelled by the Trustee or the Security
Registrar or delivered to the Trustee or the Security Registrar for
cancellation;
|
|
|
|
|
(b)
|
|
any such Security for whose payment at the Maturity thereof money in
the necessary amount (or, to the extent that such Security is payable
at such Maturity in shares of Common Stock or other securities or
property, Common Stock or such other securities or property in the
necessary amount, together with, if applicable, cash in lieu of
fractional shares or securities) has been theretofore deposited
pursuant hereto (other than pursuant to Section 402) 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 and any Coupons
appertaining thereto,
provided
that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
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|
(c)
|
|
any such Security with respect to which the Company has effected
defeasance or covenant defeasance pursuant to Section 402, except to
the extent provided in Section 402;
|
|
|
|
|
(d)
|
|
any such Security which has been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless there
shall have been presented to the Trustee proof satisfactory to it that
such Security is held by a bona fide purchaser in whose hands such
Security is a valid obligation of the Company; and
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(e)
|
|
any such Security converted or exchanged as contemplated by this
Indenture into Common Stock or other securities or property, if the
terms of such Security provide for such conversion or exchange
pursuant to Section 301;
|
provided, however
, that in determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction, notice, consent or
-6-
waiver hereunder or are present at a meeting of Holders of Securities for quorum purposes, (i) the
principal amount of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall be equal to the
amount of the principal thereof that pursuant to the terms of such Original Issue Discount Security
would be declared (or shall have been declared to be) due and payable upon a declaration of
acceleration thereof pursuant to Section 502 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such determination and that
shall be deemed Outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided in or pursuant to this Indenture,
and (iii) the principal amount of a Security denominated in a Foreign Currency that may be counted
in making such determination and that shall be deemed Outstanding for such purposes shall be the
Dollar equivalent, determined on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent on the date
of original issuance of such Security of the amount determined as provided in (i) above) of such
Security, and (iv) Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in making any such
determination or relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned
shall be so disregarded. Securities so owned which shall have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee (A) the
pledgee’s right so to act with respect to such Securities and (B) that the pledgee is not the
Company or any other obligor upon the Securities or any Coupons appertaining thereto or an
Affiliate (other than a Trust) of the Company or such other obligor.
“Paying Agent” means any Person authorized by the Company, including the Company, to pay the
principal of, or any premium or interest on, or any Additional Amounts with respect to, any
Security or any Coupon on behalf of the Company.
“Person” and “person” mean any individual, corporation, partnership, association, limited
liability company, other company, real estate investment trust, business trust, joint venture,
joint-stock company, trust, unincorporated organization or government or any agency or political
subdivision thereof.
“Place of Payment”, with respect to any Security, means the place or places where the
principal of, or any premium or interest on, or any Additional Amounts with respect to such
Security are payable as provided in or pursuant to this Indenture or such Security.
“Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same indebtedness as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under Section 306 in exchange
for or in lieu of a lost, destroyed, mutilated or stolen Security or any Security to which a
mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to evidence the same
indebtedness as the lost, destroyed, mutilated or stolen Security or the Security to which a
mutilated, destroyed, lost or stolen Coupon appertains.
“Redemption Date”, with respect to any Security or portion thereof to be redeemed, means the
date fixed for such redemption by or pursuant to this Indenture or such Security.
-7-
“Redemption Price”, with respect to any Security or portion thereof to be redeemed, means the
price at which it is to be redeemed as determined by or pursuant to this Indenture or such
Security.
“Registered Security” means any Security established pursuant to Section 201 which is
registered in the Security Register.
“Regular Record Date” for the interest payable on any Registered Security on any Interest
Payment Date therefor means the date, if any, specified in or pursuant to this Indenture or such
Security as the record date for the payment of such interest.
“Required Currency” has the meaning specified in Section 116.
“Responsible Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture .
“Securities Act” means the Securities Act of 1933, as amended, or any successor thereto, in
each case as amended from time to time.
“Security” or “Securities” means any note or notes, bond or bonds, debenture or debentures, or
any other evidences of indebtedness, as the case may be, authenticated and delivered under this
Indenture;
provided, however,
that, if at any time there is more than one Person acting as
Trustee under this Indenture, “Securities”, with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.
“Security Register” and “Security Registrar” have the respective meanings specified in
Section 305.
“Significant Subsidiary” means any Subsidiary of the Company that is a “significant
subsidiary” as defined in Rule 1-02 of Regulation S-X promulgated by the Commission (as such rule
is in effect on the date of this Indenture).
“Special Record Date” for the payment of any Defaulted Interest on any Registered Security
means a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity”, with respect to any Security or any installment of principal thereof or
interest thereon or any Additional Amounts with respect thereto, means the date established by or
pursuant to this Indenture or such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is, or such Additional Amounts are, due and
payable.
“Subsidiary” means a corporation or a partnership or a limited liability company a majority of
the outstanding voting stock or partnership or membership interests, as the case may be, of which
is owned or controlled, directly or indirectly, by the Company or by one or more other Subsidiaries
of the
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Company. For the purposes of this definition, “voting stock” means stock having voting power
for the election of directors, or trustees, as the case may be, whether at all times or only so
long as no senior class of stock has voting power by reason of any contingency.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, and any reference
herein to the Trust Indenture Act or a particular provision thereof shall mean such Act or
provision, as the case may be, as amended or replaced from time to time or as supplemented from
time to time by rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
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 each
Person who is then a Trustee hereunder;
provided, however
, that if at any time there is more than
one such Person, “Trustee” shall mean each such Person and as used with respect to the Securities
of any series shall mean the Trustee with respect to the Securities of such series.
“United States”, means the United States of America (including the states thereof and the
District of Columbia), its territories, its possessions and other areas subject to its
jurisdiction; and the term “United States of America” means the United States of America.
“United States Alien”, except as otherwise provided in or pursuant to this Indenture or any
Security, means any Person who, for United States Federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or
trust, or a foreign partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
“Vice President”, when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
“Vice President”.
Section 102
Compliance Certificates and Opinions.
Except as otherwise expressly provided in or pursuant to this Indenture, upon any application
or request by the Company to the Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents or any of them is specifically
required by any provision of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (including certificates delivered pursuant to Section 1010) shall include:
(1) a statement that each individual signing such certificate or opinion has read such
condition or covenant and the definitions herein relating thereto;
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(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
Section 103
Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon an Opinion of Counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the opinion with respect to the matters upon which his
certificate or opinion is based is erroneous. Any such Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Company, a governmental official or officers or any other Person or Persons,
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, opinion or representations with respect to such matters are erroneous.
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 or any
Security, they may, but need not, be consolidated and form one instrument.
Section 104
Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by or pursuant to this Indenture to be made, given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing. If, but only if, Securities
of a series are issuable as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to this Indenture to be made,
given or taken by Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions of
Article Fifteen, or a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or
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instruments and any such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the “Act” of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of execution of any such instrument or of
a writing appointing any such agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 315 of the Trust
Indenture Act) conclusive in favor of the Trustee and the Company and any agent of the
Trustee or the Company, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in Section 1506.
Without limiting the generality of this Section 104, unless otherwise provided in or pursuant
to this Indenture, a Holder, including a Depository that is a Holder of a global Security, may
make, give or take, by a proxy or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture or the Securities to be made, given or taken by Holders, and a Depository that is a
Holder of a global Security may provide its proxy or proxies to the beneficial owners of interests
in any such global Security through such Depository’s standing instructions and customary
practices.
(2) The fact and date of the execution by any Person of any such instrument or writing
may be proved in any reasonable manner which the Trustee deems sufficient and in accordance
with such reasonable rules as the Trustee may determine; and the Trustee may in any instance
require further proof with respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered Securities held by
any Person, and the date of the commencement and the date of the termination of holding the
same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer Securities held by any
Person, and the date of the commencement and the date of the termination of holding the same,
may be proved by the production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary reasonably acceptable to
the Company, wherever situated, if such certificate shall be deemed by the Company and the
Trustee to be satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or
such facts may be proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Company and the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any Bearer
Security continues until (1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is surrendered in exchange for
a Registered Security, or (4) such Bearer Security is no longer Outstanding. The ownership,
principal amount and serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of the commencement and the date of the termination of
holding the same may also be proved in any other manner which the Company and the Trustee
deem sufficient.
(5) If the Company shall solicit from the Holders of any Registered Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act, the Company
may at its option (but is not obligated to), by Board Resolution, fix in advance a record
date for the
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determination of Holders of Registered Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of Registered Securities
of record at the close of business on such record date shall be deemed to be Holders for the
purpose of determining whether Holders of the requisite proportion of Outstanding Securities
have authorized or agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall
be computed as of such record date; provided that no such authorization, agreement or consent
by the Holders of Registered Securities shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months after the
record date.
(6) Any request, demand, authorization, direction, notice, consent, waiver or other Act
by the Holder of any Security shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent or the Company in reliance thereon, whether
or not notation of such Act is made upon such Security.
Section 105
Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders
or other document provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to the attention of its Treasurer at the address of
its principal office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
Section 106
Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture, where this Indenture
provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered Securities if in
writing and mailed, first-class postage prepaid, to each Holder of a Registered Security
affected by such event, at his address as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer Securities, if any, if
published in an Authorized Newspaper in The City of New York and, if such Securities are then
listed on any stock exchange outside the United States and the Trustee has been apprised in
writing of
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such listing, in an Authorized Newspaper in such city as the Company shall advise the
Trustee that such stock exchange so requires, on a Business Day at least twice, the first
such publication to be not earlier than the earliest date and the second such publication not
later than the latest date prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a
Registered Security shall affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as
provided herein. Any notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given or provided. In the case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized Newspaper or Authorized
Newspapers or by reason of any other cause it shall be impracticable to publish any notice to
Holders of Bearer Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither failure to give notice by publication to Holders
of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the
sufficiency of any notice mailed to Holders of Registered Securities as provided above.
Notwithstanding any other provision of this Indenture, where this Indenture provides for
notice of any event to a Holder of a global Security, such notice shall be sufficiently given if
given to the Depository (or its designee) pursuant to standing instructions from the Depository (or
its designee).
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 of Securities shall be filed
with the Trustee, but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107
Language of Notices.
Any request, demand, authorization, direction, notice, consent, election or waiver required or
permitted under this Indenture shall be in the English language, except that, if the Company so
elects, any published notice may be in an official language of the country of publication.
Section 108
Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties under any required
provision of the Trust Indenture Act imposed hereon by Section 318(c) thereof, such required
provision shall control.
Section 109
Effect 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.
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Section 110
Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 111
Separability Clause.
In case any provision in this Indenture, any Security or any Coupon shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining provisions shall not,
to the fullest extent permitted by law, in any way be affected or impaired thereby.
Section 112
Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or implied, shall give to any
Person, other than the parties hereto, any Security Registrar, any Paying Agent and their
successors hereunder and the Holders of Securities or Coupons, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 113
Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made or instruments
entered into and, in each case, performed in said State.
Section 114
Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any Securities, in any case
where any Interest Payment Date, Stated Maturity or Maturity of, or any other day on which a
payment is due with respect to, any Security shall be a day which is not a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in any Security or Coupon or in the Board Resolution, Officers’
Certificate or supplemental indenture establishing the terms of any Security that specifically
states that such provision shall apply in lieu hereof) payment need not be made at such Place of
Payment on such date, but such payment may be made on the next succeeding day that is a Business
Day at such Place of Payment with the same force and effect as if made on the Interest Payment
Date, at the Stated Maturity or Maturity or on any such other payment date, as the case may be, and
no interest shall accrue on the amount payable on such date or at such time for the period from and
after such Interest Payment Date, Stated Maturity, Maturity or other payment date, as the case may
be, to the next succeeding Business Day.
Section 115
Counterparts.
This Indenture may be executed in several counterparts, each of which shall be an original and
all of which shall constitute but one and the same instrument.
Section 116
Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so under applicable law,
that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect
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of the principal of, or premium or interest, if any, or Additional Amounts on the Securities
of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the
“Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Trustee could purchase in The City of New York the Required Currency
with the Judgment Currency on the New York Banking Day preceding that on which a final unappealable
judgment is given and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with clause (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall result in the actual
receipt, by the payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action
for the purpose of recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so expressed to be payable and
(iii) shall not be affected by judgment being obtained for any other sum due under this Indenture.
For purposes of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in The City of New
York are authorized or obligated by law, regulation or executive order to be closed. The provisions
of this Section 116 shall not be applicable with respect to any payment due on a Security which is
payable in Dollars.
Section 117
Extension of Payment Dates.
In the event that (i) the terms of any Security or Coupon appertaining thereto established in
or pursuant to this Indenture permit the Company or any Holder thereof to extend the date on which
any payment of principal of, or premium, if any, or interest, if any, on, or Additional Amounts, if
any, with respect to such Security or Coupon is due and payable and (ii) the due date for any such
payment shall have been so extended, then all references herein to the Stated Maturity of such
payment (and all references of like import) shall be deemed to refer to the date as so extended.
Section 118
Immunity of Stockholders, Directors, Officers and Agents of the Company.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture,
or in any Security, or because of any indebtedness evidenced thereby, shall be had against any
past, present or future stockholder, employee, officer or director, as such, of the Company or of
any predecessor or successor, either directly or through the Company or any predecessor or
successor, under any rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the Holders and as part of the
consideration for the issue of the Securities.
Section 119
Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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Section 120
Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
ARTICLE TWO
SECURITIES FORMS
Section 201
Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or permanent global Security
issued pursuant to this Indenture shall be in the form established by or pursuant to a Board
Resolution and set forth in an Officers’ Certificate, or established in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by or pursuant to this Indenture or any indenture
supplemental hereto and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may, consistently herewith, be determined by the officer
of the Company executing such Security or Coupon as evidenced by the execution of such Security or
Coupon.
Unless otherwise provided in or pursuant to this Indenture or any Securities, the Securities
shall be issuable in registered form without Coupons.
Definitive Securities and definitive Coupons shall be printed, lithographed or engraved or
produced by any combination of these methods on a steel engraved border or steel engraved borders
or may be produced in any other manner, all as determined by the officer of the Company executing
such Securities or Coupons, as evidenced by the execution of such Securities or Coupons.
Section 202
Form of Trustee’s Certificate of Authentication.
Subject to Section 611, the Trustee’s certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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as Trustee
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By:
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Authorized Signatory
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Section 203
Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any Securities, the Securities
shall not be issuable in global form. If Securities of a series shall be issuable in temporary or
permanent
global form, any such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or such lesser amount
as is permitted by the terms thereof) from time to time endorsed thereon or reflected on the books
and records of the Trustee and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect exchanges. Any
endorsement of any Security in global form to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Holders, of Outstanding Securities represented thereby
shall be made in such manner and by such Person or Persons as shall be specified therein or
pursuant to Section 301 with respect to such Security or in the Company Order to be delivered
pursuant to Section 303 or 304 with respect thereto. Subject to the provisions of Section 303 and,
if applicable, Section 304, the Trustee shall deliver and redeliver any Security in global form in
the manner and upon instructions given by the Person or Persons specified therein or pursuant to
Section 301 with respect to such Security or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any instructions by the
Company with respect to a Security in global form shall be in writing but need not be accompanied
by or contained in an Officers’ Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the foregoing provisions of this paragraph, in the event a global Security is
exchangeable for definitive Securities as provided in Section 305, then, unless otherwise provided
in or pursuant to this Indenture with respect to the Securities of such series, the Trustee shall
deliver and redeliver such global Security to the extent necessary to effect such exchanges, shall
endorse such global Security to reflect any decrease in the principal amount thereto resulting from
such exchanges and shall take such other actions, all as contemplated by Section 305.
Notwithstanding the provisions of Section 307, unless otherwise specified in or pursuant to
this Indenture or any Securities, payment of principal of, any premium and interest on, and any
Additional Amounts in respect of any Security in temporary or permanent global form shall be made
to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the preceding
paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities represented by a global Security (i) in
the case of a global Security in registered form, the Holder of such global Security in registered
form, or (ii) in the case of a global Security in bearer form, the Person or Persons specified
pursuant to Section 301.
ARTICLE THREE
THE SECURITIES
Section 301
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series.
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With respect to any Securities to be authenticated and delivered hereunder, there shall be
established in or pursuant to one or more Board Resolutions and set forth in an Officers’
Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of
any Securities of a series,
(1) the title of the Securities of such series;
(2) any limit upon the aggregate principal amount of the Securities of such series which
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 304, 305, 306, 905 or 1107, upon repayment in
part of any Security of such series pursuant to Article Thirteen or upon surrender in part of
any Security for conversion or exchange into Common Stock or other securities or property
pursuant to its terms), and if such series may be reopened from time to time for the issuance
of additional Securities of such series or to establish additional terms of such series;
(3) if such Securities are to be issuable as Registered Securities, as Bearer Securities
or alternatively as Bearer Securities and Registered Securities, and whether the Bearer
Securities are to be issuable with Coupons, without Coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and the terms, if any,
upon which Bearer Securities may be exchanged for Registered Securities and vice versa;
(4) if any of such Securities are to be issuable in global form, when any of such
Securities are to be issuable in global form and (i) whether such Securities are to be issued
in temporary or permanent global form or both, (ii) whether beneficial owners of interests in
any such global Security may exchange such interests for Securities of the same series and of
like tenor and of any authorized form and denomination, and the circumstances under which any
such exchanges may occur, if other than in the manner specified in Section 305, (iii) the
name of the Depository with respect to any such global Security and (iv) if applicable and in
addition to the Persons specified in Section 305, the Person or Persons who shall be entitled
to make any endorsements
on any such global Security and to give the instructions and take the other actions with
respect to such global Security contemplated by the first paragraph of Section 203;
(5) if any of such Securities are to be issuable as Bearer Securities, the date as of
which any such Bearer Security shall be dated (if other than the date of original issuance of
the first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer Securities, whether interest
in respect of any portion of a temporary Bearer Security in global form payable in respect of
an Interest Payment Date therefor prior to the exchange, if any, of such temporary Bearer
Security for definitive Securities shall be paid to any clearing organization with respect to
the portion of such temporary Bearer Security held for its account and, in such event, the
terms and conditions (including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date;
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(7) the date or dates, or the method or methods, if any, by which such date or dates
shall be determined, on which the principal and premium, if any, of such Securities is
payable;
(8) the rate or rates at which such Securities shall bear interest, if any, or the
method or methods, if any, by which such rate or rates are to be determined, the date or
dates, if any, from which such interest shall accrue or the method or methods, if any, by
which such date or dates are to be determined, the Interest Payment Dates, if any, on which
such interest shall be payable and the Regular Record Date, if any, for the interest payable
on Registered Securities on any Interest Payment Date, the notice, if any, to Holders
regarding the determination of interest on a floating rate Security and the manner of giving
such notice, and the basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan, The City of New York, the
place or places where the principal of, any premium and interest on or any Additional Amounts
with respect to such Securities shall be payable, any of such Securities that are Registered
Securities may be surrendered for registration of transfer or exchange, any of such
Securities may be surrendered for conversion or exchange and notices or demands to or upon
the Company in respect of such Securities and this Indenture may be served;
(10) whether any of such Securities are to be redeemable at the option of the Company
and, if so, the date or dates on which, the period or periods within which, the price or
prices at which and the other terms and conditions upon which such Securities may be
redeemed, in whole or in part, at the option of the Company;
(11) if the Company is obligated to redeem or purchase any of such Securities pursuant
to any sinking fund or analogous provision or at the option of any Holder thereof and, if so,
the date or dates on which, the period or periods within which, the price or prices at which
and the other terms and conditions upon which such Securities shall be redeemed or purchased,
in whole or in part, pursuant to such obligation, and any provisions for the remarketing of
such Securities so redeemed or purchased;
(12) the denominations in which any of such Securities that are Registered Securities
shall be issuable if other than denominations of $1,000 and any integral multiple thereof,
and the denominations in which any of such Securities that are Bearer Securities shall be
issuable if other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible into and/or exchangeable
for Common Stock or other securities or property, and if so, the terms and conditions upon
which such Securities will be so convertible or exchangeable, and any deletions from or
modifications or additions to this Indenture to permit or to facilitate the issuance of such
convertible or exchangeable Securities or the administration thereof;
(14) if other than the principal amount thereof, the portion of the principal amount of
any of such Securities that shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the method by which such portion is to be determined;
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(15) if other than Dollars, the Foreign Currency in which payment of the principal of,
any premium or interest on or any Additional Amounts with respect to any of such Securities
shall be payable;
(16) if the principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities are to be payable, at the election of the Company or a
Holder thereof or otherwise, in Dollars or in a Foreign Currency other than that in which
such Securities are stated to be payable, the date or dates on which, the period or periods
within which, and the other terms and conditions upon which, such election may be made, and
the time and manner of determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such Securities or any of them
are to be paid pursuant to such election, and any deletions from or modifications of or
additions to the terms of this Indenture to provide for or to facilitate the issuance of
Securities denominated or payable, at the election of the Company or a Holder thereof or
otherwise, in a Foreign Currency;
(17) if the amount of payments of principal of, any premium or interest on or any
Additional Amounts with respect to such Securities may be determined with reference to an
index, formula or other method or methods (which index, formula or method or methods may be
based, without
limitation, on one or more Currencies, commodities, equity indices or other indices),
and, if so, the terms and conditions upon which and the manner in which such amounts shall be
determined and paid or payable;
(18) any deletions from, modifications of or additions to the Events of Default or
covenants of the Company with respect to any of such Securities (whether or not such Events
of Default or covenants are consistent with the Events of Default or covenants set forth
herein), and if Section 1007 shall be applicable with respect to any such additional
covenants;
(19) if any one or more of Section 401 relating to satisfaction and discharge, Section
402(2) relating to defeasance or Section 402(3) relating to covenant defeasance shall not be
applicable to the Securities of such series, and any covenants in addition to or other than
those specified in Section 402(3) relating to the Securities of such series which shall be
subject to covenant defeasance, and, if the Securities of such series are subject to
repurchase or repayment at the option of the Holders thereof pursuant to Article Thirteen, if
the Company’s obligation to repurchase or repay such Securities will be subject to
satisfaction and discharge pursuant to Section 401 or to defeasance or covenant defeasance
pursuant to Section 402, and, if the Holders of such Securities have the right to convert or
exchange such Securities into Common Stock or other securities or property, if the right to
effect such conversion or exchange will be subject to satisfaction and discharge pursuant to
Section 401 or to defeasance or covenant defeasance pursuant to Section 402, and any
deletions from, or modifications or additions to, the provisions of Article Four (including
any modification which would permit satisfaction and discharge, defeasance or covenant
defeasance to be effected with respect to less than all of the outstanding Securities of such
series) in respect of the Securities of such series;
(20) if any of such Securities are to be issuable upon the exercise of warrants, and the
time, manner and place for such Securities to be authenticated and delivered;
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(21) if any of such Securities are issuable in global form and are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary Security) only
upon receipt of certain certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(22) whether and under what circumstances the Company will pay Additional Amounts on
such Securities to any holder who is a United States Alien in respect of any tax, assessment
or other government charge and, if so, whether the Company will have the option to redeem
such Securities rather than pay such Additional Amounts;
(23) if there is more than one Trustee, the identity of the Trustee and, if not the
Trustee, the identity of each Security Registrar, Paying Agent or Authenticating Agent with
respect to such Securities;
(24) the Person to whom any interest on any Registered Security of such series shall be
payable, if other than the Person in whose name the Registered Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest, the manner in which, or the Person to whom, any interest on any Bearer
Security of such series shall be payable, if other than upon presentation and surrender of
the Coupons appertaining thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary global Security will be paid if other
than in the manner provided in this Indenture;
(25) whether and to what extent the Securities shall be guaranteed by any Person or
Persons; and
(26) any other terms of such Securities and any deletions from or modifications or
additions to this Indenture in respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining to Bearer Securities of
such series shall be substantially identical except as to Currency of payments due thereunder,
denomination and the rate of interest, or method of determining the rate of interest, if any,
Maturity, and the date from which interest, if any, shall accrue and except as may otherwise be
provided by the Company in or pursuant to the Board Resolution and set forth in the Officers’
Certificate or in any indenture or indentures supplemental hereto pertaining to such series of
Securities. The terms of the Securities of any series may provide, without limitation, that the
Securities shall be authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Board Resolution, Officers’
Certificate or supplemental indenture, as the case may be, pertaining to such series of Securities
(telephonic instructions to be promptly confirmed in writing by such person) and that such persons
are authorized to determine, consistent with such Board Resolution, Officers’ Certificate or
supplemental indenture, such terms and conditions of the Securities of such series as are specified
in such Board Resolution, Officers’ Certificate or supplemental indenture. All Securities of any
one series need not be issued at the same time and, if so provided by the Company as contemplated
by this Section 301, a series may be reopened from time to time without the consent of any Holders
for issuances of additional Securities of such series or to establish additional terms of such
series of Securities.
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If any of the terms of the Securities of any series shall be established by action taken by or
pursuant to a Board Resolution, the Board Resolution shall be delivered to the Trustee at or prior
to the delivery of the Officers’ Certificate setting forth the terms of such series.
Section 302
Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the principal of, any premium and
interest on and any Additional Amounts with respect to the Securities shall be payable in Dollars.
Unless otherwise provided in or pursuant to this Indenture, Registered Securities denominated in
Dollars shall be issuable in registered form without Coupons in denominations of $1,000 and any
integral multiple thereof, and the Bearer Securities denominated in Dollars shall be issuable in
the denomination of $5,000. Securities not denominated in Dollars shall be issuable in such
denominations as are established with respect to such Securities in or pursuant to this Indenture.
Section 303
Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman, its President or one of
its Vice Presidents and by its Treasurer, its Secretary or one of its Assistant Secretaries and may
(but need not) have its corporate seal or a facsimile thereof reproduced thereon. Coupons shall be
executed on behalf of the Company by the Chairman, the President or any Vice President of the
Company. The signature of any of these officers on the Securities or any Coupons appertaining
thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall, to the fullest extent
permitted by law, bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities or Coupons.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities, together with any Coupons appertaining thereto, executed by the
Company, to the Trustee for authentication and, provided that the Board Resolution and Officers’
Certificate or supplemental indenture or indentures with respect to such Securities referred to in
Section 301 and a Company Order for the authentication and delivery of such Securities have been
delivered to the Trustee, the Trustee in accordance with the Company Order and subject to the
provisions hereof and of such Securities shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee shall be entitled
to receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be
fully protected in relying upon, an Opinion of Counsel to the following effect, which Opinion of
Counsel may contain such assumptions, qualifications and limitations as such counsel shall deem
appropriate:
(a) the form or forms and terms of such Securities and Coupons, if any, have been
established in conformity with Sections 201 and 301 of this Indenture;
(b) all conditions precedent set forth in Sections 201, 301 and 303 of this Indenture to
the authentication and delivery of such Securities and Coupons, if any, appertaining thereto
have been complied with and that such Securities, and Coupons, when completed by appropriate
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insertions (if applicable), executed by duly authorized officers of the Company, delivered by
duly authorized officers of the Company to the Trustee for authentication pursuant to this
Indenture, and authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will constitute
valid and binding obligations of the Company, enforceable against the Company in accordance
with their terms, except as enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent conveyance, fraudulent
transfer or other similar laws relating to or affecting creditors’ rights generally, and
subject to general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
If all the Securities of any series are not to be issued at one time, it shall not be
necessary to deliver an Opinion of Counsel at the time of issuance of each Security, but such
opinion, with such modifications as counsel shall deem appropriate, shall be delivered at or before
the time of issuance of the first Security of such series. After any such first delivery, any
separate request by the Company that the Trustee authenticate Securities of such series for
original issue will be deemed to be a certification by the Company that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such Securities continue
to have been complied with.
The Trustee shall not be required to authenticate or to cause an Authenticating Agent to
authenticate any Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee or if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication. Each Bearer Security
and any Bearer Security in global form shall be dated as of the date specified in or pursuant to
this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for in Section 202 or 611 executed
by or on behalf of the Trustee or by the Authenticating Agent by the manual signature of one of its
authorized signatories. Such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered hereunder. Except as
permitted by Section 306 or 307 or as may otherwise be provided in or pursuant to this Indenture,
the Trustee shall not authenticate and deliver any Bearer Security unless all Coupons appertaining
thereto then matured have been detached and cancelled.
Section 304
Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute and deliver to the
Trustee and, upon Company Order, the Trustee shall authenticate and deliver, in the manner provided
in Section 303, temporary Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of
the definitive Securities in lieu of which they are issued, in registered form or, if authorized in
or pursuant to this Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as the officers of the
Company executing such
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Securities may determine, as conclusively evidenced by their execution of
such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which shall be exchanged in
accordance with the provisions set forth in this Indenture or the provisions established pursuant
to Section 301, if temporary Securities are issued, the Company shall cause definitive Securities
to be prepared without unreasonable delay. Except as otherwise provided in or pursuant to this
Indenture, after the preparation of definitive Securities of the same series and containing terms
and provisions that are identical to those of any temporary Securities, such temporary Securities
shall be exchangeable for such definitive Securities upon surrender of such temporary Securities at
an Office or Agency for such Securities, without charge to any Holder thereof. Except as otherwise
provided in or pursuant to this Indenture, upon surrender for cancellation of any one or more
temporary Securities (accompanied by any unmatured Coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount
of definitive Securities of authorized denominations of the same series and containing identical
terms and provisions;
provided, however
, that no definitive Bearer Security, except as provided
in or pursuant to this Indenture, shall be delivered in exchange for a temporary Registered
Security; and
provided, further
, that a definitive Bearer Security shall be delivered in exchange
for a temporary Bearer Security only in compliance with the conditions set forth in or pursuant to
this Indenture. Unless otherwise provided in or pursuant to this Indenture with respect to a
temporary global Security, 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.
Section 305
Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the Company shall cause to
be kept a register (each such register being herein sometimes referred to as the “Security
Register”) at an Office or Agency for such series in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of the Registered Securities of
such series and of transfers of the Registered Securities of such series. Such Office or Agency
shall be the “Security Registrar” for that series of Securities. Unless otherwise specified in or
pursuant to this Indenture or the Securities, the
initial Security Registrar for each series of Securities shall be as specified in the
penultimate paragraph of Section 1002. The Company shall have the right to remove and replace from
time to time the Security Registrar for any series of Securities; provided that no such removal or
replacement shall be effective until a successor Security Registrar with respect to such series of
Securities shall have been appointed by the Company and shall have accepted such appointment. In
the event that the Trustee shall not be or shall cease to be Security Registrar with respect to a
series of Securities, it shall have the right to examine the Security Register for such series at
all reasonable times. There shall be only one Security Register for each series of Securities.
Except as otherwise provided in or pursuant to this Indenture, upon surrender for registration
of transfer of any Registered Security of any series at any Office or Agency for such series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of the same series
denominated as authorized in or pursuant to this Indenture, of a like aggregate principal amount
bearing a number not contemporaneously outstanding and containing identical terms and provisions.
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Except as otherwise provided in or pursuant to this Indenture, at the option of the Holder,
Registered Securities of any series may be exchanged for other Registered Securities of the same
series containing identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at any Office or
Agency for such series. Whenever any Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities
which the Holder making the exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to Securities of any series, at the
option of the Holder, Bearer Securities of such series may be exchanged for Registered Securities
of such series containing identical terms, denominated as authorized in or pursuant to this
Indenture and in the same aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any Office or Agency for such series, with all unmatured Coupons and all matured
Coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company and
the Trustee in an amount equal to the face amount of such missing Coupon or Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to any
Paying Agent any such missing Coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment;
provided, however
, that, except
as otherwise provided in Section 1002, interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an Office or Agency for such series located outside
the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such Office or Agency
for such series in exchange for a Registered Security of such series and like tenor after the close
of business at such Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or (ii) any Special Record
Date and before the opening of business at such Office or Agency on the related date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the Person so surrendering
the Bearer Security), and interest or Defaulted Interest, as the case may be, shall not be payable
on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but shall be payable only to the
Holder of such Coupon when due in accordance with the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to Securities of any series, at the
option of the Holder, Registered Securities of such series may be exchanged for Bearer Securities
upon such terms and conditions as may be provided in or pursuant to this Indenture with respect to
such series.
Whenever any Securities are surrendered for exchange as contemplated by the immediately
preceding two paragraphs, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or pursuant to this Indenture,
the global Securities of any series shall be exchangeable for definitive certificated Securities of
such series
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only if (i) the Depository for such global Securities notifies the Company that it is
unwilling or unable to continue as a Depository for such global Securities or at any time the
Depository for such global Securities ceases to be a clearing agency registered as such under the
Exchange Act, if so required by applicable law or regulation, and no successor Depository for such
Securities shall have been appointed within 90 days of such notification or of the Company becoming
aware of the Depository’s ceasing to be so registered, as the case may be, (ii) the Company, in its
sole discretion, determines that the Securities of such series shall no longer be represented by
one or more global Securities and executes and delivers to the Trustee a Company Order to the
effect that such global Securities shall be so exchangeable, or (iii) an Event of Default has
occurred and is continuing with respect to such Securities and the Depositary delivers to the
Trustee written notice that such global Securities shall be so exchangeable.
If the beneficial owners of interests in a global Security are entitled to exchange such
interests for definitive Securities as the result of an event described in clause (i), (ii) or
(iii) of the preceding paragraph, then without unnecessary delay but in any event not later than
the earliest date on which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in such form and denominations as are required by or pursuant to this
Indenture, and of the same series, containing identical terms and in aggregate principal amount
equal to the principal amount of such
global Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such global Security shall be surrendered from time to time by the
Depository (or its custodian) as shall be specified in the Company Order with respect thereto
(which the Company agrees to deliver), and in accordance with instructions given to the Trustee and
the Depository (which instructions shall be in writing but need not be contained in or accompanied
by an Officers’ Certificate or be accompanied by an Opinion of Counsel), as shall be specified in
the Company Order with respect thereto to the Trustee, as the Company’s agent for such purpose, to
be exchanged, in whole or in part, for definitive Securities as described above without charge. The
Trustee shall authenticate and make available for delivery, in exchange for each portion of such
surrendered global Security, a like aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such global Security to be
exchanged, which (unless such Securities are not issuable both as Bearer Securities and as
Registered Securities, in which case the definitive Securities exchanged for the global Security
shall be issuable only in the form in which the Securities are issuable, as provided in or pursuant
to this Indenture) shall be in the form of Bearer Securities or Registered Securities, or any
combination thereof, and which shall be in such denominations and, in the case of Registered
Securities, registered in such names, as shall be specified by the Depository, but subject to the
satisfaction of any certification or other requirements to the issuance of Bearer Securities;
provided, however, that no such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities of the same series to be redeemed and ending on
the relevant Redemption Date; and
provided, further
, that (unless otherwise provided in or
pursuant to this Indenture) no Bearer Security delivered in exchange for a portion of a global
Security shall be mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by the Trustee to such
Depository (or its custodian) or such other Depository (or its custodian) referred to above in
accordance with the instructions of the Company referred to above, and the Trustee shall endorse
such global Security to reflect the decrease in the principal amount thereof resulting from such
exchange. If a Registered Security is issued in exchange for any portion of a global Security after
the close of business at the Office or Agency for such Security where such exchange occurs on or
after (i) any Regular Record Date for such Security and before the opening of business at such
Office or Agency on the next Interest Payment Date, or (ii) any Special Record Date for such
Security and before the opening of business at such Office or Agency on the
-26-
related proposed date
for payment of interest or Defaulted Interest, as the case may be, interest shall not be payable on
such Interest Payment Date or proposed date for payment, as the case may be, in respect of such
Registered Security, but shall be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of such portion of such
global Security shall be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company evidencing the same debt and entitling the Holders thereof to the
same benefits under this Indenture as the Securities surrendered upon such registration of transfer
or exchange.
Every Registered Security presented or surrendered for registration of transfer or for
exchange or redemption shall (if so required by the Company or the Security Registrar for such
Security) be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar for such Security duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, or
any redemption or repayment of Securities, or any conversion or exchange of Securities for other
types of securities or property, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section 304, 905 or 1107, upon
repayment or repurchase in part of any Registered Security pursuant to Article Thirteen, or upon
surrender in part of any Registered Security for conversion or exchange into Common Stock or other
securities or property pursuant to its terms, in each case not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the Company shall not be
required (i) to issue, register the transfer of or exchange any Securities during a period
beginning at the opening of business 15 days before the day of the selection for redemption of
Securities of like tenor and terms and of the same series under Section 1103 and ending at the
close of business on the day of such selection, or (ii) to register the transfer of or exchange any
Registered Security, or portion thereof, so selected for redemption, except in the case of any
Registered Security to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except, to the extent provided with respect
to such Bearer Security, that such Bearer Security may be exchanged for a Registered Security of
like tenor and terms and of the same series, provided that such Registered Security shall be
simultaneously surrendered for redemption with written instruction for payment consistent with the
provisions of this Indenture or (iv) to issue, register the transfer of or exchange any Security
which, in accordance with its terms, has been surrendered for repayment at the option of the Holder
pursuant to Article Thirteen and not withdrawn, except the portion, if any, of such Security not to
be so repaid.
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 (including any transfers between or among
Depositary participants or beneficial owners of interests in any Global 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
-27-
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.
Neither the Trustee nor any Paying Agent shall have any responsibility for any actions taken
or not taken by the Depositary.
Section 306
Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon appertaining to it is
surrendered to the Trustee, subject to the provisions of this Section 306, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the
same series containing identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding to the Coupons, if
any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to their satisfaction of
the destruction, loss or theft of any Security or Coupon, and (ii) such security or indemnity as
may be required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company’s request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Security or in exchange for the Security to which a destroyed, lost or stolen Coupon
appertains with all appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen
Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case any mutilated,
destroyed, lost or stolen Security or Coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay such Security or Coupon;
provided, however
, that payment of principal of, any premium or interest on or any Additional
Amounts with respect to any Bearer Securities shall, except as otherwise provided in Section 1002,
be payable only at an Office or Agency for such Securities located outside the United States and,
unless otherwise provided in or pursuant to this Indenture, any interest on Bearer Securities and
any Additional Amounts with respect to such interest shall be payable only upon presentation and
surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security, with any Coupons appertaining thereto issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security, or in exchange for a Security to which a destroyed,
lost or stolen Coupon appertains shall constitute a separate obligation of the Company, whether or
not the destroyed, lost or stolen Security and Coupons appertaining thereto or the destroyed, lost
or stolen Coupon shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this
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Indenture equally and proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to this Indenture with
respect to particular Securities or generally, shall (to the extent lawful) be 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 or Coupons.
Section 307
Payment of Interest and Certain Additional Amounts; Rights to Interest and
Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional
Amounts with respect to any Registered Security which shall be payable, and are 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 as of the close of business on the
Regular Record Date for such interest. Unless otherwise provided in or pursuant to this Indenture,
in case a Bearer Security is surrendered in exchange for a Registered Security after the close of
business at an Office or Agency for such Security on any Regular Record Date therefor and before
the opening of business at such Office or Agency on the next succeeding Interest Payment Date
therefor, such Bearer Security shall be surrendered without the Coupon relating to such Interest
Payment Date and interest shall not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but shall be payable only to the
Holder of such Coupon when due in accordance with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional
Amounts with respect to any Registered Security which shall be payable, but shall not be punctually
paid or duly provided for, on any Interest Payment Date for such Registered Security (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the Holder thereof on the relevant
Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Person in
whose name such Registered Security (or a Predecessor Security thereof) shall be registered
at the close of business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on such Registered 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 on
or prior to the date of the proposed payment, such money when so deposited to be held in
trust for the benefit of the
Person 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 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to the Holder of such
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Registered Security (or a Predecessor Security
thereof) at his address as it appears in the Security Register not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in the name and at the expense
of the Company cause a similar notice to be published at least once in an Authorized
Newspaper of general circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of 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 Person
in whose name such Registered Security (or a Predecessor Security thereof) shall be
registered at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer Security is surrendered at the
Office or Agency for such Security in exchange for a Registered Security after the close of
business at such Office or Agency on any Special Record Date and before the opening of
business at such Office or Agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the Coupon relating to such
Defaulted Interest and Defaulted Interest shall not be payable on such proposed date of
payment in respect of the Registered Security issued in exchange for such Bearer Security,
but shall be payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which such Security 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 payment
shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the Securities of any particular
series, at the option of the Company, interest on Registered Securities that bear interest may be
paid by mailing a check to the address of the Person entitled thereto as such address shall appear
in the Security Register or by transfer to an account maintained by the payee with a bank located
in the United States of America.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in lieu of any other
Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
Section 308
Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of transfer, the Company,
the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered in the Security Register as the owner of such Registered Security
for the purpose of receiving payment of principal of, any premium and (subject to Sections 305 and
307) interest on and any Additional Amounts with respect to such Registered Security and for all
other purposes whatsoever, whether or not any payment with respect to such Registered Security
shall be overdue, and neither the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
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The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of
any Bearer Security or the bearer of any Coupon as the absolute owner of such Security or Coupon
for the purpose of receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not any payment with respect to such Security or Coupon shall be overdue,
and neither the Company, the Trustee or any agent of the Company or the Trustee shall be affected
by notice to the contrary.
No holder of any beneficial interest in any global Security held on its behalf by a Depository
shall have any rights under this Indenture with respect to such global Security, and such
Depository may be treated by the Company, the Trustee, and any agent of the Company or the Trustee
as the owner of such global Security for all purposes whatsoever. None of the Company, the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership interests of a
global Security or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, any
Paying Agent or the Security Registrar from giving effect to any written certification, proxy or
other authorization furnished by the applicable Depository, as a Holder, with respect to a global
Security or impair, as between such Depository and the owners of beneficial interests in such
global Security, the operation of customary practices governing the exercise of the rights of such
Depository (or its nominee) as the Holder of such global Security.
Section 309
Cancellation.
All Securities and Coupons surrendered for payment, redemption, registration of transfer,
exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such Securities and
Coupons, as well as Securities and Coupons surrendered directly to the Trustee for any such
purpose, shall be cancelled promptly by the Trustee. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Securities so delivered shall be
cancelled promptly by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly permitted by or
pursuant to this Indenture. All cancelled Securities and Coupons held by the Trustee shall be
disposed of in accordance with its procedures for the disposition of cancelled securities and the
Trustee shall deliver to the Company a certificate of such disposition upon written request.
Section 310
Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in the Securities of any
series, interest on the Securities shall be computed on the basis of a 360-day year of twelve
30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401
Satisfaction and Discharge.
Unless, pursuant to Section 301, the provisions of this Section 401 shall not be applicable
with respect to the Securities of any series, upon the direction of the Company by a Company Order,
this Indenture shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto, and the Trustee, on receipt
of a Company Order, at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore authenticated and delivered and all
Coupons appertaining thereto (other than (i) Coupons appertaining to Bearer Securities of
such series surrendered in exchange for Registered Securities of such series and maturing
after such exchange whose surrender is not required or has been waived as provided in
Section 305, (ii) Securities and Coupons of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 306, (iii) Coupons
appertaining to Securities of such series called for redemption and maturing after the
relevant Redemption Date whose surrender has been waived as provided in Section 1106, and
(iv) Securities and Coupons of such series 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 1003) have been delivered to the
Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or (ii) below, if
applicable, any Coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) if redeemable at the option of the Company, are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for such purpose, money in the Currency in
which such Securities are payable in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation, including the principal of, any premium and
interest on, and, to the extent that the Securities of such series provide for the payment of
Additional Amounts thereon and the amount of any such Additional Amounts which are or will be
payable with respect to the Securities of such series is at the time of deposit determinable
by the Company (in
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the exercise by the Company of its reasonable discretion), any Additional
Amounts with respect to, such Securities and any Coupons appertaining thereto, to the date of
such deposit (in the case of Securities which have become due and payable) or to the Maturity
thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the
Company with respect to the Outstanding Securities of such series and any Coupons
appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series have been complied with.
In the event there are Securities of two or more series Outstanding hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and discharge of this
Indenture only if requested to do so with respect to Securities of such series as to which it is
Trustee and if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee under Section 606 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section, the
obligations of the Company and the Trustee with respect to the Securities of such series under
Sections 305, 306, 403, 404, 1002, 1003 and, if applicable to the Securities of such series, 1004
(including, without limitation, with respect to the payment of Additional Amounts, if any, with
respect to such Securities as contemplated by Section 1004, but only to the extent that the
Additional Amounts payable with respect to such Securities exceed the amount deposited in respect
of such Additional Amounts pursuant to Section 401(1)(b)), any rights of Holders of the Securities
of such series (unless otherwise provided pursuant to Section 301 with respect to the Securities of
such series) to require the Company to repurchase or repay, and the obligations of the Company to
repurchase or repay, such Securities at the option of the Holders pursuant to Article Thirteen
hereof, and any rights of Holders of the Securities of such series (unless otherwise provided
pursuant to Section 301 with respect to the Securities of such series) to convert or exchange, and
the obligations of the Company to convert or exchange, such Securities into Common Stock or other
securities or property, shall survive.
Section 402
Defeasance and Covenant Defeasance.
(1) Unless, pursuant to Section 301, either or both of (i) defeasance of the Securities
of or within a series under clause (2) of this Section 402 or (ii) covenant defeasance of the
Securities of or within a series under clause (3) of this Section 402 shall not be applicable
with respect to the Securities of such series, then such provisions, together with the other
provisions of this Section 402 (with such modifications thereto as may be specified pursuant
to Section 301 with respect to any Securities), shall be applicable to such Securities and
any Coupons appertaining thereto, and the Company may at its option by Board Resolution, at
any time, with respect to the Securities of or within such series and any Coupons
appertaining thereto, elect to have Section 402(2) or Section 402(3) be applied to such
Outstanding Securities and any Coupons appertaining thereto upon compliance with the
conditions set forth below in this Section 402. Unless otherwise specified pursuant to
Section 301 with respect to the Securities of any series, defeasance under clause (2) of this
Section 402 and covenant defeasance under clause (3) of this
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Section 402 may be effected only
with respect to all, and not less than all, of the Outstanding Securities of any series. To
the extent that the terms of any Security or Coupon appertaining thereto established in or
pursuant to this Indenture permit the Company or any Holder thereof to extend the date on
which any payment of principal of, or premium, if any, or interest, if any, on, or Additional
Amounts, if any, with respect to such Security or Coupon is due and payable, then unless
otherwise provided pursuant to Section 301, the right to extend such date shall terminate
upon defeasance or covenant defeasance, as the case may be.
(2) Upon the Company’s exercise of the above option applicable to this Section 402(2)
with respect to any Securities of or within a series, the Company shall be deemed to have
been
discharged from its obligations with respect to such Outstanding Securities and any
Coupons appertaining thereto on the date the conditions set forth in clause (4) of this
Section 402 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any Coupons appertaining thereto, which shall
thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section
402 and the other Sections of this Indenture referred to in clauses (i) through (iv) of this
paragraph, and to have satisfied all of its other obligations under such Securities and any
Coupons appertaining thereto and this Indenture insofar as such Securities and any Coupons
appertaining thereto are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such
Outstanding Securities and any Coupons appertaining thereto to receive, solely (except as
provided in clause (ii) below) from the trust fund described in clause (4)(a) of this Section
402 and as more fully set forth in this Section 402 and 403, payments in respect of the
principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any,
with respect to, such Securities and any Coupons appertaining thereto when such payments are
due, (ii) the obligations of the Company and the Trustee with respect to such Securities
under Sections 305, 306, 1002, 1003 and, if applicable to the Securities of such series, 1004
(including, without limitation, with respect to the payment of Additional Amounts, if any,
with respect to such Securities as contemplated by Section 1004, but only to the extent that
the Additional Amounts payable with respect to such Securities exceed the amount deposited in
respect of such Additional Amounts pursuant to clause (4)(a) of this Section 402)), any
rights of Holders of such Securities (unless otherwise provided pursuant to Section 301 with
respect to the Securities of such series) to require the Company to repurchase or repay, and
the obligations of the Company to repurchase or repay, such Securities at the option of the
Holders pursuant to Article Thirteen hereof, and any rights of Holders of such Securities
(unless otherwise provided pursuant to Section 301 with respect to the Securities of such
series) to convert or exchange, and the obligations of the Company to convert or exchange,
such Securities into Common Stock or other securities or property, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (iv) this Section 402 and Sections
403 and 404. The Company may exercise its option under this Section 402(2) notwithstanding
the prior exercise of its option under Section 402(3) with respect to such Securities and any
Coupons appertaining thereto.
(3) Upon the Company’s exercise of the above option applicable to this Section 402(3)
with respect to any Securities of or within a series, the Company shall be released from its
obligations under clauses (ii) and (iii) of Section 1005 and under Sections 1006, 1007, and
1008 and any other covenant applicable to such Securities with respect to such Securities and
any Coupons
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appertaining thereto shall cease to be applicable to such Securities on and after
the date the conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, “covenant defeasance”), and such Securities and any Coupons appertaining
thereto shall thereafter be
deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in connection with any
such covenant, but shall continue to be deemed “Outstanding” for all other purposes
hereunder. For this purpose, such covenant defeasance means that with respect to such
Outstanding Securities and any Coupons appertaining thereto, the Company may omit to comply
with, and shall have no liability in respect of, any term, condition or limitation set forth
in any such Section or any such other covenant, whether directly or indirectly, by reason of
any reference elsewhere herein to any such Section or such other covenant or by reason of
reference in any such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a default or an Event of
Default under Section 501(4) or 501(8) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and Coupons appertaining
thereto shall be unaffected thereby.
(4) The following shall be the conditions to application of clause (2) or (3) of this
Section 402 to any Outstanding Securities of or within a series and any Coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 607 who shall agree to
comply with the provisions of this Section 402 applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities and any Coupons
appertaining thereto, (1) an amount in Dollars or in such Foreign Currency in which such
Securities and any Coupons appertaining thereto are then specified as payable at Stated
Maturity or, if such defeasance or covenant defeasance is to be effected in compliance
with subsection (f) below, on the relevant Redemption Date, as the case may be, or (2)
Government Obligations applicable to such Securities and Coupons appertaining thereto
(determined on the basis of the Currency in which such Securities and Coupons
appertaining thereto are then specified as payable at Stated Maturity or, if such
defeasance or covenant defeasance is to be effected in compliance with subsection (f)
below, on the relevant Redemption Date, as the case may be) which through the scheduled
payment of principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment of principal of (and
premium, if any) and interest, if any, on such Securities and any Coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any case, in an amount,
sufficient, without consideration of any reinvestment of such principal and interest, in
the opinion of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge,
(y) the principal of (and premium, if any) and interest, if any, on, and, to the extent
that such Securities provide for the payment of Additional Amounts thereon and the amount
of any such Additional Amounts which are or will be payable with
respect to the Securities of such series is at the time of deposit determinable by
the Company (in the exercise by the Company of its reasonable discretion), any Additional
Amounts with respect to, such Outstanding Securities and any Coupons appertaining thereto
on the Stated Maturity of such principal or installment of principal or interest or the
applicable
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Redemption Date, as the case may be, and (z) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities and any Coupons
appertaining thereto on the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities and any Coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other material agreement or
instrument to which the Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or both would
become an Event of Default with respect to such Securities and any Coupons appertaining
thereto shall have occurred and be continuing on the date of such deposit, and, solely in
the case of defeasance under Section 402(2), no Event of Default with respect to such
Securities and any Coupons appertaining thereto under clause (5) or (6) of Section 501 or
event which with notice or lapse of time or both would become an Event of Default with
respect to such Securities and any Coupons appertaining thereto under clause (5) or (6)
of Section 501 shall have occurred and be continuing at any time during the period ending
on and including the 91st day after the date of such deposit (it being understood that
this condition to defeasance under Section 402(2) shall not be deemed satisfied until the
expiration of such period).
(d) In the case of defeasance pursuant to Section 402(2), the Company shall have
delivered to the Trustee an opinion of independent counsel stating that (x) the Company
has received from, or there has been published by, the Internal Revenue Service a ruling,
or (y) since the date of this Indenture there has been a change in applicable federal
income tax law, in either case to the effect that, and based thereon such opinion of
independent counsel shall confirm that, the Holders of such Outstanding Securities and
any Coupons appertaining thereto will not recognize income, gain or loss for federal
income tax purposes as a result of such defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred; or, in the case of covenant defeasance pursuant
to Section 402(3), the Company shall have delivered to the Trustee an opinion of
independent counsel to the effect that the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or loss for federal income
tax purposes as a result of such covenant defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(e) The Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the defeasance or
covenant defeasance, as the case may be, under this Indenture have been complied with.
(f) If the monies or Government Obligations or combination thereof, as the case may
be, deposited under clause (a) above are sufficient to pay the principal of, and premium,
if any, and interest, if any, on and, to the extent provided in such clause (a),
Additional Amounts with respect to, such Securities provided such Securities are redeemed
on a particular Redemption Date, the Company shall have given the Trustee irrevocable
instructions to
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redeem such Securities on such date and to provide notice of such
redemption to Holders as provided in or pursuant to this Indenture.
(g) Notwithstanding any other provisions of this Section 402(4), such defeasance or
covenant defeasance shall be effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the Company in connection
therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all money and
Government Obligations (or other property as may be provided pursuant to Section 301)
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee—collectively for purposes of this Section 402(5) and Section 403, the “Trustee”)
pursuant to clause (4)(a) of Section 402 in respect of any Outstanding Securities of any
series and any Coupons appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any Coupons appertaining
thereto and this Indenture, to the payment, either directly or through any Paying Agent
(other than the Company or any Subsidiary or Affiliate of the Company acting as Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any Coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and premium, if
any) and interest and Additional Amounts, if any, but such money need not be segregated from
other funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any Securities, if, after a
deposit referred to in Section 402(4)(a) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect pursuant to Section 301 or the terms of
such Security to receive payment in a Currency other than that in which the deposit pursuant to
Section 402(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in
respect of the Foreign Currency in which the deposit pursuant to Section 402(4)(a) has been made,
the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed
to have been, and will be, fully discharged and satisfied through the payment of the principal of
(and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to,
such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified below in the
case of any such election) the amount or other property deposited in respect of such Security into
the Currency in which such Security becomes payable as a result of such election or Conversion
Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to each payment date, or
(y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign
Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge, imposed
on or assessed against the Government Obligations deposited pursuant to this Section 402 or the
principal or interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in clause (4)(a) of this Section 402
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which, in the opinion of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect a defeasance or covenant defeasance, as
applicable, in accordance with this Section 402.
Section 403
Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money and Government
Obligations deposited with the Trustee pursuant to Section 401 or 402 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the Coupons and this Indenture,
to the payment, either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal,
premium, interest and Additional Amounts for whose payment such money has or Government Obligations
have been deposited with or received by the Trustee; but such money and Government Obligations need
not be segregated from other funds except to the extent required by law.
Section 404
Reinstatement.
If the Trustee (or other qualifying trustee appointed pursuant to Section 402(4)(a)) or any
Paying Agent is unable to apply any moneys or Government Obligations deposited pursuant to Section
401(1) or 402(4)(a) to pay any principal of or premium, if any, or interest, if any, on or
Additional Amounts, if any, with respect to the Securities of any series by reason of any legal
proceeding or any order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company’s obligations under this Indenture and
the Securities of such series shall
be revived and reinstated as though no such deposit had occurred, until such time as the
Trustee (or other qualifying trustee) or Paying Agent is permitted to apply all such moneys and
Government Obligations to pay the principal of and premium, if any, and interest, if any, on and
Additional Amounts, if any, in respect of the Securities of such series as contemplated by Sections
401 or 402 as the case may be, and Section 403;
provided
,
however
, that if the Company makes
any payment of the principal of or premium, if any, or interest if any, on or Additional Amounts,
if any, in respect of the Securities of such series following the reinstatement of its obligations
as aforesaid, the Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the funds held by the Trustee (or other qualifying trustee) or Paying
Agent.
ARTICLE FIVE
REMEDIES
Section 501
Events of Default.
“Event of Default”, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body)
unless such event is specifically deleted or modified in or pursuant to the supplemental indenture,
Board Resolution or Officers’ Certificate establishing the terms of such series pursuant to this
Indenture:
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(1) default in the payment of any interest on, or any Additional Amounts payable in
respect of any interest on, any of the Securities of such series or any Coupon appertaining
thereto when such interest or such Additional Amounts, as the case may be, become due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of any principal of or premium, if any, on, or any Additional
Amounts payable in respect of any principal of or premium, if any, on, any of the Securities
of such series when due (whether at Maturity or otherwise and whether payable in cash or in
shares of Common Stock or other securities or property); or
(3) default in the deposit of any sinking fund payment or payment under any analogous
provision when due with respect to any of the Securities of such series; or
(4) default in the performance, or breach, of any covenant or warranty of the Company in
this Indenture or any Security of such series (other than a covenant or warranty for which
the consequences of breach or nonperformance are addressed elsewhere in this Section 501 or a
covenant or warranty which has expressly been included in this Indenture, whether or not by
means of a supplemental indenture, solely for the benefit of Securities of a series other
than such series), and continuance of such default or breach (without such default or breach
having been waived in accordance of the provisions of this Indenture) for a period of 90 days
after there has been given, by registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of such series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;
or
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or any Significant Subsidiary of the Company in an
involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the Company or any
Significant Subsidiary of the Company a bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, arrangement, adjustment or composition of or in respect of
the Company or any Significant Subsidiary of the Company under any applicable Federal or
State law, or appointing a custodian, receiver, conservator, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Significant Subsidiary of the
Company or of any substantial part of the property of the Company or any Significant
Subsidiary of the Company, or ordering the winding up or liquidation of the affairs of the
Company or any Significant Subsidiary of the Company, and the continuance of any such decree
or order for relief unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company or any Significant Subsidiary of the Company of a
voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company or any Significant Subsidiary of the
Company to the entry of a decree or order for relief in respect of the Company or any
Significant Subsidiary of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to
the commencement of any bankruptcy or insolvency case or proceeding against the Company or
any Significant Subsidiary
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of the Company, or the filing by the Company or any Significant Subsidiary of the
Company of a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by the Company or any Significant Subsidiary
of the Company to the filing of such petition or to the appointment of or taking possession
by a custodian, receiver, conservator, liquidator, assignee, trustee, sequestrator or similar
official of the Company or any Significant Subsidiary of the Company or of any substantial
part of the property of the Company or any Significant Subsidiary of the Company, or the
making by the Company or any Significant Subsidiary of the Company of an assignment for the
benefit of creditors, or the taking of corporate action by the Company or any Significant
Subsidiary of the Company in furtherance of any such action; or
(7) default in the delivery of any shares of Common Stock, together with cash in lieu of
fractional shares, or any other securities or property (including cash) when required to be
delivered upon conversion of any convertible Security of such series or upon the exchange of
any Security of such series which is exchangeable for other securities or property, and
continuance of such default for a period of 10 days; or
(8) any other Event of Default provided in or pursuant to this Indenture with respect to
Securities of such series.
Section 502
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in clause (5) or (6) of
Section 501) with respect to Securities of any series occurs and is continuing, then either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of such series may declare the principal of all the Securities of such series, or such
lesser amount as may be provided for in the Securities of such series, and accrued and unpaid
interest, if any, thereon to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by the Holders), and upon any such declaration such principal or such
lesser amount, as the case may be, and such accrued and unpaid interest shall become immediately
due and payable. If an Event of Default specified in clause (5) or (6) of Section 501 with respect
to the Securities of any series occurs, then the principal of all of the Securities of such series,
or such lesser amount as may be provided for in the Securities of such series, and accrued and
unpaid interest, if any, thereon shall
ipso facto
become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any Holder of the
Securities of such series.
At any time after Securities of any series have been accelerated and before a judgment or
decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities of such series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum of money sufficient to pay
(or, to the extent that the terms of the Securities of such series established pursuant to
Section 301 expressly provide for payment to be made in shares of Common Stock or other
securities or property, shares of Common Stock or other securities or property, together with
cash in lieu of fractional shares or securities, sufficient to pay)
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(a) all overdue installments of any interest on any Securities of such series and
any Coupons appertaining thereto which have become due otherwise than by such
declaration of acceleration and any Additional Amounts with respect thereto,
(b) the principal of and any premium on any Securities of such series which have
become due otherwise than by such declaration of acceleration and any Additional Amounts
with respect thereto and, to the extent permitted by applicable law, interest thereon at
the rate or respective rates, as the case may be, provided for in or with respect to
such Securities, or, if no such rate or rates are so provided, at the rate or respective
rates, as the case may be, of interest borne by such Securities,
(c) to the extent permitted by applicable law, interest upon installments of any
interest, if any, which have become due otherwise than by such declaration of
acceleration and any Additional Amounts with respect thereto at the rate or respective
rates, as the case may be, provided for in or with respect to such Securities, or, if no
such rate or rates are so provided, at the rate or respective rates, as the case may be,
of interest borne by such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section 606; and
(2) all Events of Default with respect to Securities of such series other than the
non-payment of the principal of, any premium and interest on, and any Additional Amounts with
respect to Securities of such series which shall have become due solely by such declaration
of acceleration, shall have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 503
Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on, or any Additional Amounts payable
in respect of any interest on, any Security or any Coupon appertaining thereto when such
interest or Additional Amounts, as the case may be, shall have become due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of any principal of or premium, if any, on, or any
Additional Amounts payable in respect of any principal of or premium, if any, on, any
Security at its Maturity, or
(3) default is made in the deposit of any sinking fund payment when due,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders
of such Securities and any Coupons appertaining thereto, the whole amount of money then due and
payable with respect to such Securities and any Coupons appertaining thereto, with interest upon
the overdue principal, any premium and, to the extent permitted by applicable law, upon any overdue
installments of interest and Additional Amounts at the rate or respective rates, as the case may
be, provided for or with
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respect to such Securities or, if no such rate or rates are so provided, at the rate or respective
rates, as the case may be, of interest borne by such Securities, and, in addition thereto, such
further amount of money as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and all other amounts due to the Trustee under Section 606.
If the Company fails to pay the money it is required to pay the Trustee pursuant to the
preceding paragraph forthwith upon the demand of the Trustee, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the collection of the money so
due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the
same against the Company or any other obligor upon such Securities and any Coupons appertaining
thereto and collect the monies adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or any other obligor upon such Securities and any Coupons
appertaining thereto, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series and any Coupons appertaining thereto by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in this Indenture or such
Securities or in aid of the exercise of any power granted herein or therein, or to enforce any
other proper remedy.
Section 504
Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of any overdue
principal, premium, interest or Additional Amounts) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such lesser amount as may be
provided for in the Securities of such series, of the principal and any premium, interest and
Additional Amounts owing and unpaid in respect of the Securities and any Coupons appertaining
thereto and to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents or counsel) and of the
Holders of Securities or any Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder of Securities or any
Coupons to make such payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders of Securities or any Coupons, to pay to the
Trustee any amount due to
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it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder of a Security or any Coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or Coupons or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
Section 505
Trustee May Enforce Claims without Possession of Securities or Coupons.
All rights of action and claims under this Indenture or any of the Securities or Coupons may
be prosecuted and enforced by the Trustee without the possession of any of the Securities or
Coupons or the production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit
of each and every Holder of a Security or Coupon in respect of which such judgment has been
recovered.
Section 506
Application of Money Collected.
Any money or property collected by the Trustee pursuant to this Article with respect to the
Securities of any series shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money or property on account of principal, or any
premium, interest or Additional Amounts, upon presentation of such Securities or the Coupons, if
any, appertaining thereto, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the Securities and any Coupons for
principal and any premium, interest and Additional Amounts in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind,
according to the aggregate amounts due and payable on such Securities and Coupons for principal and
any premium, interest and Additional Amounts;
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 507
Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining thereto shall have any
right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities of such series;
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(2) the Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of such series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity satisfactory to the
Trustee against the costs, expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(5) 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 such series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture or any Security to
affect, disturb or prejudice the rights of any other such Holders or Holders of Securities of any
other series, or to obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
Section 508
Unconditional Right of Holders to Receive Principal and any Premium, Interest and
Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any Security or Coupon
shall have the right, which is absolute and unconditional, to receive payment of the principal of,
any premium, if any, and (subject to Sections 305 and 307) interest, if any, on and any Additional
Amounts with respect to such Security or such Coupon, as the case may be, on the respective Stated
Maturity or Maturities therefor specified in such Security or Coupon (or, in the case of
redemption, on the Redemption Date or, in the case of repayment pursuant to Article Thirteen hereof
at the option of such Holder if provided in or pursuant to this Indenture, on the date such
repayment is due) and, in the case of any Security which is convertible into or exchangeable for
other securities or property, to convert or exchange, as the case may be, such Security in
accordance with its terms, and to institute suit for the enforcement of any such payment and any
such right to convert or exchange, and such right shall not be impaired without the consent of such
Holder.
Section 509
Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and each such Holder shall
continue as though no such proceeding had been instituted.
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Section 510
Rights and Remedies Cumulative.
To the extent permitted by applicable law and except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or Coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to
each and every Holder of a Security or a Coupon is intended to be exclusive of any other right or
remedy, and every right and remedy, to the extent permitted by law, shall be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any
other appropriate right or remedy.
Section 511
Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or Coupon to exercise any
right or remedy accruing upon any Event of Default shall, to the extent permitted by applicable
law, impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to
any Holder of a Security or a Coupon may, to the extent permitted by applicable law, be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by such Holder, as
the case may be.
Section 512
Control by Holders of Securities.
The Holders of a majority in aggregate principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture
or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction,
(3) such direction is not unduly prejudicial to the rights of the other Holders of
Securities of such series not joining in such action, and
(4) the Holders comply with any demands made by the Trustee under Section 601(5) with
respect to such matter.
Section 513
Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities of any series on behalf of the Holders of all the Securities of such series and any
Coupons appertaining thereto may waive any past default hereunder with respect to such series and
its consequences, except
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(1) a default in the payment of the principal of, any premium or interest on, or any
Additional Amounts with respect to, any Security of such series or any Coupons appertaining
thereto, or
(2) in the case of any Securities which are convertible into or exchangeable for Common
Stock or other securities or property, a default in any such conversion or exchange, or
(3) a default in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each Outstanding Security
of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514
Waiver of Usury, Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so) it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law or any usury law or any other law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive the Company from paying all or any portion of
the principal of or premium, if any, or interest, if any on or Additional Amounts, if any, with
respect to any Securities as contemplated herein and therein or which may affect the covenants or
the performance of this Indenture or the Securities; and the Company (to the extent that it may
lawfully do so) expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to the Trustee or the
Holders, but will suffer and permit the execution of every such power as though no such law had
been enacted.
Section 515
Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees and disbursements, against any party
litigant in such suit having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section 515 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of Outstanding Securities of any series, or to any
suit instituted by any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest, if any, on or Additional Amounts, if any, with respect to any Security on or
after the respective Stated Maturities expressed in such Security (or, in the case of redemption,
on or after the Redemption Date, and, in the case of repayment at the option of the Holder pursuant
to Article Thirteen hereof, on or after the date for repayment) or for the enforcement of the
right, if any, to convert or exchange any Security into Common Stock or other securities in
accordance with its terms.
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ARTICLE SIX
THE TRUSTEE
Section 601
Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) 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, direction, consent, order, bond, debenture, note, coupon or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or a Company Order (in each case, other than delivery of any
Security, together with any Coupons appertaining thereto, to the Trustee for authentication
and delivery pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) 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 (unless other evidence shall be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers’ Certificate and before the
Trustee acts or refrains from acting, it may require an Officers’ Certificate, an Opinion of
Counsel or both;
(4) the Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by or pursuant to this Indenture at the request or direction of any of the
Holders of Securities of any series or any Coupons appertaining thereto pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) 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, coupon or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine, during business hours and upon
reasonable notice, the books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
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responsible for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(9) in no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action;
(10) the Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities and this
Indenture;
(11) 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, and each agent, custodian
and other Person employed to act hereunder;
(12) the Trustee may request that the Company deliver a certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture; and
(13) no provision of this Indenture shall require the Trustee to expend or risk own
funds or incur any liability; and
(14) the rights, privileges, protections and benefits given to the Trustee are extended
to, and shall be enforceable by, the Trustee in each of its capacities hereunder.
Section 602
Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to the Securities of
any series, the Trustee shall transmit by mail to all Holders of Securities of such series entitled
to receive reports pursuant to Section 703(3), notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any), or interest, if any,
on, or Additional Amounts or any sinking fund installment with respect to, any Security of such
series, the Trustee shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in the interest of the
Holders of Securities and Coupons of such series; and
provided, further
, that in the case of any
default of the character specified in Section 501(4) or 501(8) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term “default” means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect to Securities of
such series.
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Section 603
Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificate of
authentication, and in any Coupons shall be taken as the statements of the Company and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or of the Securities
or the Coupons, 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. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the Company of the
Securities or the proceeds thereof.
Section 604
May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
Person that may be an agent of the Trustee or the Company, in its individual or any other capacity,
may become the owner or pledgee of Securities or Coupons 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 if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other Person.
Section 605
Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required by law and shall be
held uninvested. 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.
Section 606
Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for all services
rendered by the Trustee hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust), provided that the
compensation set forth in any fee letter shall be deemed reasonable;
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to the Trustee’s negligence or bad
faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee and their agents for,
and to hold them harmless against, any loss, liability or reasonable expense (including,
without limitation, the reasonable fees and disbursements of the Trustee’s agents, legal
counsel, accountants and experts, and including taxes other than taxes based upon, measured
by or determined by the income of the Trustee) incurred without negligence or bad faith on
their part, arising out of or in connection with the acceptance or administration of the
trust or trusts
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hereunder, including the reasonable costs and expenses of defending themselves against
any claim (whether asserted by the Company, or any Holder or any other Person) or liability
in connection with the exercise or performance of any of their powers or duties hereunder, or
in connection with enforcing the provisions of this Section, except to the extent that any
such loss, liability or expense was due to the Trustee’s negligence or bad faith.
As security for the performance of the obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities of any series upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of principal of, or
premium or interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default specified by
Section 501(5) or (6) is intended to constitute an expense of administration under any then
applicable bankruptcy or insolvency law. “Trustee” for purposes of this Section 606 shall include
any predecessor Trustee but the negligence or bad faith of any Trustee shall not affect the rights
of any other Trustee under this Section 606. The provisions of this Section 606 shall, to the
extent permitted by law, survive any termination of this Indenture (including, without limitation,
termination pursuant to any Bankruptcy Laws) and the resignation or removal of the Trustee.
Section 607
Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a corporation, organized and doing
business under the laws of the United States of America, any state thereof or the District of
Columbia, eligible under Section 310(a)(1) of the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a combined capital and surplus
(computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000
subject to supervision or examination by Federal or state authority. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this Article.
Section 608
Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the Securities of one or more
series by giving written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 609 shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning Trustee may, at the
Company’s expense, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to such series.
(3) The Trustee may be removed at any time with respect to the Securities of any series
by Act of the Holders of a majority in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and the Company.
(4) If at any time:
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(a) the Trustee shall fail to comply with the obligations imposed upon it under
Section 310(b) of the Trust Indenture Act with respect to Securities of any series after
written request therefor by the Company or any Holder of a Security of such series who
has been a bona fide Holder of a Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 607 and shall fail to
resign after written request therefor by the Company or any such Holder, or
(c) 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 or pursuant to a Board Resolution, may remove the
Trustee with respect to all Securities or the Securities of such series, or (ii) subject to
Section 315(e) of the Trust Indenture Act, any Holder of a Security who has been a bona fide Holder
of a Security of such series 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 of such series and the appointment of a successor Trustee or
Trustees.
(5) If the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of
one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint
a successor Trustee or Trustees 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 particular series) and shall comply with the
applicable requirements of Section 609. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 609, become the
successor Trustee with respect to the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the Holders of
Securities and accepted appointment in the manner required by Section 609, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of
such series.
(6) The Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a successor Trustee with
respect to the Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Registered Securities, if any, of such
series as their names and addresses appear in the Security Register and, if Securities of
such series are issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of
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Payment located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
Section 609
Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with respect to all
Securities, such successor Trustee so appointed shall execute, acknowledge and deliver to the
Company and the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties hereunder of the retiring Trustee; but, on the request of
the Company or such successor Trustee, such retiring Trustee, upon payment of its charges,
shall execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and, subject to Section 1003, shall duly
assign, transfer and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 606.
(2) Upon the appointment hereunder of any successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring Trustee and such
successor Trustee shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest in, such successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust, that
each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be
responsible for any notice given to, or received by, or any act or failure to act on the part
of any other Trustee hereunder, and, upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein, such retiring Trustee shall have no further responsibility for the
exercise of rights and powers or for the performance of the duties and obligations vested in
the Trustee under this Indenture with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates other than as hereinafter expressly
set forth, and such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or such successor Trustee, such retiring
Trustee, upon payment of its charges with respect to the Securities of that or those series
to which the appointment of such successor relates and subject to Section 1003 shall duly
assign, transfer and deliver to such successor Trustee, to the extent contemplated by such
supplemental indenture, the property and money held by such retiring Trustee hereunder
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with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates, subject to its claim, if any, provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) or
(2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor Trustee unless at
the time of such acceptance such successor Person shall be qualified and eligible under this
Article.
Section 610
Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder (provided
that such corporation shall otherwise be qualified and eligible under this Article), without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated but not delivered by the Trustee then in office,
any such successor to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities. In case any Securities shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate and deliver such Securities in
either its own name or that of its predecessor Trustee.
Section 611
Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to the Company with
respect to one or more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of that or those series issued upon original issue, exchange,
registration of transfer, partial redemption, partial repayment, partial conversion or exchange for
Common Stock or other securities or property, or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as provided in or
pursuant to this Indenture, shall at all times be a corporation that would be permitted by the
Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act,
is authorized under applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
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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 all or
substantially all of the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder,
provided
such corporation shall be
otherwise eligible under this Section, 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 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 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, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall (i)
mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such Authenticating Agent shall
serve, as their names and addresses appear in the Security Register, and (ii) if Securities of the
series are issued as Bearer Securities, publish notice of such appointment at least once in an
Authorized Newspaper in the place where such successor Authenticating Agent has its principal
office if such office is located outside the United States. 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.
The Company agrees to pay each Authenticating Agent from time to time reasonable compensation
for its services under this Section. If the Trustee makes such payments, it shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more series of Securities
pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to
or in lieu of the Trustee’s certificate of authentication, an alternate certificate of
authentication in substantially the following form:
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
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As Trustee
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By:
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As Authenticating Agent
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Authorized Signatory
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If all of the Securities of any series may not be originally issued at one time, and if the
Trustee does not have an office capable of authenticating Securities upon original issuance located
in a Place of Payment where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested in writing (which writing need not be accompanied
by or contained in an Officers’ Certificate of the Company), shall appoint in accordance with this
Section an Authenticating Agent having an office in a Place of Payment designated by the Company
with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701
Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Company shall furnish or
cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series a list, in each case in such
form and as of such dates as the Trustee may reasonably require, of the names and addresses
of Holders as of the applicable date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the
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 is the Security Registrar no such list shall be
required to be furnished.
Section 702
Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant to Section 312 of the
Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company, the Trustee, any Paying Agent or any Security
Registrar shall be held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with Section 312(c) of the Trust
Indenture Act, regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant to a request made
under Section 312(b) of the Trust Indenture Act.
Section 703
Reports by Trustee.
(1) Within 60 days after May 15th of each year commencing with the first May 15th following
the first issuance of Securities pursuant to Section 301, if required by Section 313(a) of the
Trust
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Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture
Act, a brief report dated as of such May 15th with respect to any of the events specified in said
Sections 313(a) and 313(b)(2) which may have occurred since the later of the immediately preceding
May 15
th
and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(a) of the Trust Indenture
Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the manner and to the Persons
required by Sections 313(c) and 313(d) of the Trust Indenture Act.
Section 704
Reports by Company.
(a) The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company files the same with the
Commission, copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is
not required to file information, documents or reports pursuant to either of said Sections,
then it shall file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company, with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the Trustee, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and regulations prescribed from time
to time by the Commission. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information
contained therein, including the Company’s compliance with any of its covenants hereunder (as
to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
(b) The Company intends to file the reports referred to in Section 704(a) hereof with the
Commission in electronic form pursuant to Regulation S-T of the Commission using the Commission’s
Electronic Data Gathering, Analysis and Retrieval system. Compliance with the foregoing, or any
successor electronic system approved by the Commission, shall constitute delivery by the Company of
such reports to the Trustee and Holders in compliance with the provision of Section 704(a) and TIA
Sections 314(a). Notwithstanding anything to the contrary herein, the Trustee shall have no duty to
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search for or obtain any electronic or other filings that the Company makes with the
Commission, regardless of whether such filings are periodic, supplemental or otherwise. Delivery of
the reports, information and documents to the Trustee pursuant to this Section 704(b) shall be
solely for the purposes of compliance with this Section 704(b) and with TIA Section 314(a). The
Trustee’s receipt of such reports, information and documents shall not constitute notice to it of
the content thereof or of any matter determinable from the content thereof (and the Trustee shall
not have any duty to ascertain or inquire as to such content or matter), including the Company’s
compliance with any of its covenants hereunder, as to which the Trustee is conclusively entitled to
rely upon Officers’ Certificates.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801
Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not, in any transaction or series of related transactions, consolidate with
or merge into any Person or sell, assign, transfer, lease or otherwise convey all or substantially
all its properties and assets to any Person, unless:
(1) either (A) the Company shall be the continuing Person (in the case of a merger), or
(B) the successor Person (if other than the Company) formed by such consolidation or into
which the Company is merged or which acquires by sale, assignment, transfer, lease or other
conveyance all or substantially all the properties and assets of the Company shall be a
corporation organized and existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee) supplemental hereto, executed by
such successor corporation and delivered to the Trustee, the due and punctual payment of the
principal of, any premium and interest on, and any Additional Amounts with respect to, all
the Outstanding Securities and the due and punctual performance and observance of every
obligation in this Indenture and the Outstanding Securities on the part of the Company to be
performed or observed, and which supplemental indenture shall provide for conversion or
exchange rights in accordance with the provisions of the Securities of any series that are
convertible or exchangeable into Common Stock or other securities;
(2) immediately after giving effect to such transaction and treating any indebtedness
that becomes an obligation of the Company or any Subsidiary as a result of that transaction
as having been incurred by the Company or any Subsidiary at the time of the transaction, no
Event of Default, and no event which, after notice or lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing; and
(3) either the Company or the successor Person shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease or other conveyance and, if a supplemental
indenture is required in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
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For purposes of the foregoing, any sale, assignment, transfer, lease or other conveyance of
all or any of the properties and assets of one or more Subsidiaries of the Company (other than to
the Company or another Subsidiary), which, if such properties and assets were owned by the Company,
would constitute all or substantially all of the Company’s properties and assets, shall be deemed
to be the transfer of all or substantially all of the properties and assets of the Company.
Section 802
Successor Person Substituted for Company.
Upon any consolidation by the Company with or merger of the Company into any other Person or
any sale, assignment, transfer, lease or conveyance of all or substantially all of the properties
and assets of the Company to any Person in accordance with Section 801, the successor Person formed
by such consolidation or into which the Company is merged or to which such sale, assignment,
transfer, lease or other conveyance 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 Person had been named as the Company herein; and thereafter, except in the case of a
lease, the predecessor Person shall be released from all obligations and covenants under this
Indenture, the Securities and the Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901
Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the Company (when authorized by
or pursuant to a Board Resolution) and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and the assumption by
any such successor of the covenants of the Company contained herein and in the Securities or
to evidence the addition or release of any guarantor; or
(2) to add to the covenants of the Company for the benefit of the Holders of all or any
series of Securities (as shall be specified in such supplemental indenture or indentures) or
to surrender any right or power herein conferred upon the Company with respect to all or any
series of Securities issued under this Indenture (as shall be specified in such supplemental
indenture or indentures); or
(3) to add to or change any of the provisions of this Indenture to provide that Bearer
Securities may be registrable as to principal, to change or eliminate any restrictions on the
payment of principal of, any premium or interest on or any Additional Amounts with respect to
Securities, to permit Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be exchanged for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in uncertificated or
global form, provided any such action shall not adversely affect the interests of the Holders
of Securities of any series or any Coupons appertaining thereto; or
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(4) to establish the form or terms of Securities of any series and any Coupons
appertaining thereto as permitted by Sections 201 and 301, including, without limitation, any
conversion or exchange provisions applicable to Securities which are convertible into or
exchangeable for other securities or property, and any deletions from or additions or changes
to this Indenture in connection therewith (provided that any such deletions, additions and
changes shall not be applicable to any other series of Securities then Outstanding); or
(5) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 609; or
(6) (a) to cure any ambiguity or to correct or supplement any provision herein which may
be defective or which may be inconsistent with any other provision herein, or (b) to make any
other provisions with respect to matters or questions arising under this Indenture which
shall not adversely affect the interests of the Holders of Securities of any series then
Outstanding or any Coupons appertaining thereto in any material respect; or
(7) to add any additional Events of Default with respect to all or any series of
Securities (as shall be specified in such supplemental indenture); or
(8) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance, covenant defeasance and/or satisfaction and
discharge of any series of Securities pursuant to Article Four,
provided
that any such
action shall not adversely affect the interests of any Holder of a Security of such series
and any Coupons appertaining thereto or any other Security or Coupon in any material respect;
or
(9) to secure or otherwise or to add guarantees for the benefit of the Securities; or
(10) to make provisions with respect to conversion or exchange rights of Holders of
Securities of any series; or
(11) to amend, supplement or eliminate any provision contained herein or in any
supplemental indenture or in any Securities (which amendment or supplement may apply to one
or more series of Securities or to one or more Securities within any series as specified in
such supplemental indenture or indentures),
provided
that such amendment, supplement or
elimination does not apply to any Outstanding Security issued prior to the date of such
supplemental indenture and entitled to the benefits of such provision; or
(12) in the case of any series of Securities which are convertible into or exchangeable
for Common Stock or other securities or property, to safeguard or provide for the conversion
or exchange rights, as the case may be, of such Securities in the event of any
reclassification or change of outstanding shares of Common Stock or any merger,
consolidation, statutory share exchange or combination of the Company with or into another
Person or any sale, lease, assignment, transfer, disposition or other conveyance of all or
substantially all of the properties and assets of the Company to any other Person or other
similar transactions, if expressly required by the terms of such series of Securities
established pursuant to Section 301; or
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(13) to add to, delete from or revise the conditions, limitations or restrictions on
issue, authentication and delivery of Securities; or
(14) to conform any provision in an indenture to the requirements of the Trust Indenture
Act; or
(15) to make any change that does not adversely affect the legal rights under an
indenture of any Holder of Securities of any series issued under that indenture.
Section 902
Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company (when authorized by or pursuant to a
Board Resolution), and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of the Securities of such series or of modifying in any manner the
rights of the Holders of Securities of such series under this Indenture;
provided,
that no such
supplemental indenture, without the consent of the Holder of each Outstanding Security affected
thereby, shall
(1) change the Stated Maturity of the principal of, or premium, if any, or any
installment of interest, if any, on, or any Additional Amounts, if any, with respect to, any
Security, or reduce the principal amount thereof or the premium, if any, thereon or the rate
(or modify the calculation of such rate) of interest thereon, or reduce the amount payable
upon redemption thereof at the option of the Company or repayment thereof at the option of
the Holder, or reduce any Additional Amounts payable with respect thereto, or change the
obligation of the Company to pay Additional Amounts pursuant to Section 1004 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the amount of the
principal of any Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502 or the amount
thereof provable in bankruptcy pursuant to Section 504, or adversely affect the right of
repayment at the option of any Holder as contemplated by Article Thirteen, or extend the time
of payment of interest on any Security or any Additional Amounts, or change any of the
conversion, exchange or redemption provisions of any Security or change the Place of Payment
where or the Currency in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date or, in the case of repayment pursuant
to Article Thirteen at the option of the Holder, on or after the date for repayment) in each
case as such Stated Maturity, Redemption Date or date for repayment may, if applicable, be
extended in accordance with the terms of such Security or any Coupon appertaining thereto, or
in the case of any Security which is convertible into or exchangeable for other securities or
property, impair the right to institute suit to enforce the right to convert or exchange such
Security in accordance with its terms or release any guarantors from their guarantees of the
Securities, or, except as contemplated in any supplemental indenture, make any change in a
guarantee of a Security that would adversely affect the interests of the Holders of those
Securities, or modify the ranking or priority of the Securities in a manner adverse to the
Holders of the Securities, or
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(2) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such 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
Section 513 or 1010 of this Indenture, or reduce the requirements of Section 1504 for quorum
or voting, or
(3) modify any of the provisions of this Section, Section 513 or Section 1010, 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.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which shall have 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.
Anything in this Indenture to the contrary notwithstanding, if more than one series of
Securities is Outstanding, the Company shall be entitled to enter into a supplemental indenture
under this Section 902 with respect to any one or more series of Outstanding Securities without
entering into a supplemental indenture with respect to any other series of Outstanding Securities.
It shall not be necessary for any Act of Holders of Securities under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 903
Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trust created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Sections 315(a) through 315(d)
of the Trust Indenture Act) shall be fully protected in relying upon, an Officers’ Certificate and
an Opinion of Counsel to the effect that the execution of such supplemental indenture is authorized
or permitted by this Indenture and that such supplemental indenture has been duly authorized,
executed and delivered by, and is a valid, binding and enforceable obligation of, the Company,
subject to customary exceptions. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.
Section 904
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of a Security theretofore or thereafter authenticated
and delivered hereunder and of any Coupon appertaining thereto shall be bound thereby.
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Section 905
Reference in Securities to Supplemental Indentures.
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Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Company, to any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
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Section 906
Conformity with Trust Indenture Act.
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Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
ARTICLE TEN
COVENANTS
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Section 1001
Payment of Principal, Premium, Interest and Additional Amounts.
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The Company covenants and agrees for the benefit of the Holders of the Securities of each
series that it will duly and punctually pay the principal of, any premium and interest on and any
Additional Amounts with respect to the Securities of such series, whether payable in cash, shares
of Common Stock or other securities or property, in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer Security on or before the
Maturity thereof, and any Additional Amounts payable with respect to such interest, shall be
payable only upon presentation and surrender of the Coupons appertaining thereto for such interest
as they severally mature.
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Section 1002
Maintenance of Office or Agency.
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The Company shall maintain in each Place of Payment for any series of Securities an Office or
Agency where Securities of such series (but not Bearer Securities, except as otherwise provided
below, unless such Place of Payment is located outside the United States) may be presented or
surrendered for payment, where Securities of such series may be surrendered for registration of
transfer or exchange, where Securities of such series that are convertible or exchangeable may be
surrendered for conversion or exchange, and where notices and demands to or upon the Company in
respect of the Securities of such series relating thereto and this Indenture may be served;
provided that, if (i) the Borough of Manhattan, The City of New York is a Place of Payment for the
Securities of any series, (ii) there shall be another Place of Payment in the United States of
America for such Securities in addition to the Borough of Manhattan, The City of New York, and
(iii) all Securities of such series are originally issued solely in the form of one or more
permanent global Securities, then the Company shall not be required to maintain any such office or
agency in the Borough of Manhattan, The City of New York unless and until all or any portion of
such global Securities shall be exchanged for or otherwise issued as definitive certificated
Securities of such series as contemplated by the last paragraph of this Section 1002. If Securities
of a series are issuable as Bearer Securities, the Company shall maintain, subject to any laws or
regulations applicable thereto, an Office or Agency in a Place of Payment for such series which is
located outside the United States where Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment;
provided, however
, that if the Securities
of such series
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are listed on the London Stock Exchange or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so require, the Company
shall maintain a Paying Agent in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of such series are listed on such
exchange. 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, except that Bearer Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment at the place specified for the purpose with
respect to such Securities as provided in or pursuant to this Indenture, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
Except as otherwise provided in or pursuant to this Indenture, no payment of principal,
premium, interest or Additional Amounts with respect to Bearer Securities shall be made at any
Office or Agency in the United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however
, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars, payment of
principal of, any premium or interest on and any Additional Amounts with respect to any such
Security may be made at the Corporate Trust Office of the Trustee or any Office or Agency
designated by the Company in the Borough of Manhattan, The City of New York, if (but only if)
payment of the full amount of such principal, premium, interest or Additional Amounts at all
offices outside the United States maintained for such purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may also from time to time designate one or more other Offices or Agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations;
provided, however
, that no such designation
or rescission shall in any manner relieve the Company of its obligation to maintain an Office or
Agency in each Place of Payment for Securities of any series for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other Office or Agency.
Unless otherwise provided in or pursuant to this Indenture, the Company hereby designates the
Borough of Manhattan, the City of New York as a Place of Payment for each series of Securities,
initially appoints the Corporate Trust Office of the Trustee in the Borough of Manhattan, The City
of New York as the Company’s Office or Agency in the Borough of Manhattan, The City of New York for
such purpose and initially appoints the Trustee as the Security Registrar for each series of
Securities and, if the Securities of any series are convertible into or exchangeable for Common
Stock or other securities or property, initially appoints the Trustee as conversion or exchange
agent, as the case may be, for the Securities of such series. The Company may subsequently appoint
a different Office or Agency in the Borough of Manhattan, The City of New York and, as provided in
Section 305, may remove and replace from time to time the Security Registrar.
As set forth above in this Section 1002, and unless otherwise provided pursuant to Section 301
with respect to any series of Securities, in the event that the Securities of a series are
originally issued solely in the form of one or more permanent global Securities and if at any time
thereafter Securities of
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such series are issued in definitive certificated form in exchange for all or any portion of
such global Securities (whether pursuant to Section 305 or otherwise pursuant to the terms of such
Securities), the Company shall, at all times from and after the date of the first such exchange
until such time as no Securities of such series in definitive certificated form are Outstanding,
establish and maintain an Office or Agency in the Borough of Manhattan, The City of New York (in
addition to any other Offices or Agencies the Company is required to maintain in respect of such
Securities) where Securities of such series may be surrendered and where notices and demands in
respect of Securities of such series and this Indenture may be served for the purposes specified
in, and as contemplated by, the first paragraph of this Section 1002.
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Section 1003
Money for Securities Payments to Be Held in Trust.
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If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it shall, on or before each due date of the principal of, any premium or interest on,
or any Additional Amounts with respect to any of the Securities of such series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum in the Currency or Currencies in
which the Securities of such series are payable sufficient to pay the principal, any premium,
interest and Additional Amounts, as the case may be, so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee
in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it
shall, on or prior to each due date of the principal of, or any premium or interest on or any
Additional Amounts with respect to, any Securities of such series, deposit with any Paying Agent a
sum (in the Currency or Currencies described in the preceding paragraph) sufficient to pay the
principal, premium, interest and Additional Amounts, as the case may be, so becoming due, such sum
to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee in writing of its action or failure so
to act.
The Company shall cause each Paying Agent for any series of Securities other than the Trustee
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, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any premium or
interest on or any Additional Amounts with respect to Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the
Securities of such series) in the making of any payment of principal, any premium or interest
on or any Additional Amounts with respect to the Securities of such series; and
(3) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
To the extent that the terms of any Securities established pursuant to Section 301 provide
that any principal of, or premium or interest, if any, on or any Additional Amounts with respect to
any such Securities is or may be payable in Common Stock or other securities or property, then the
provisions of this Section 1003 shall apply,
mutatis mutandis
, to such Common Stock or
other securities or property.
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The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same terms as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, subject to applicable law 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, any premium or interest on or any Additional Amounts with respect to
any Security of any series or any Coupon appertaining thereto and remaining unclaimed for two years
after such principal or such premium or interest or Additional Amount shall have become due and
payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security or any Coupon appertaining thereto
shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof,
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, not later than
30 days after the Company’s request for such repayment, at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment for such series or to be mailed
to Holders of Registered Securities of such series, or both, 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 or mailing nor shall it be earlier than two years after such principal and
any premium or interest or Additional Amounts shall have become due and payable, any unclaimed
balance of such money then remaining will be repaid to the Company.
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Section 1004
Additional Amounts.
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If any Securities of a series provide for the payment of Additional Amounts, the Company
agrees to pay to the Holder of any such Securities or any Coupon appertaining thereto Additional
Amounts as provided in or pursuant to this Indenture or such Securities. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any premium or interest on,
or in respect of, any Security of any series or any Coupon, such mention shall be deemed to include
mention of the payment of Additional Amounts provided by the terms of such series established
hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention of the payment of
Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the Securities of any series,
if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior
to the first Interest Payment Date with respect to such series of Securities (or if the Securities
of such series shall not bear interest prior to Maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of principal or interest if
there has been any change with respect to the matters set forth in the below-mentioned Officers’
Certificate, the Company shall furnish to the Trustee and the Paying Agent or Paying Agents, if
other than the Trustee, an Officers’ Certificate instructing the Trustee and such Paying Agent or
Paying Agents whether such payment of principal of
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and premium, if any, or interest, if any, on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are United States
Aliens without withholding or deduction for or on account of any tax, assessment or other
governmental charge described in the Securities of such series or pursuant to Section 301 with
respect to the Securities of such series. If any such withholding or deduction shall be required,
then such Officers’ Certificate shall specify by country the amount, if any, required to be
withheld on or deducted from such payments to such Holders of Securities or Coupons, and the
Company agrees to pay to the Trustee or such Paying Agent the Additional Amounts required by the
terms of such Securities. The Company covenants to indemnify the Trustee and any Paying Agent for,
and to hold them harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with actions taken or omitted
by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section. Nothing
in this Section 1004 or elsewhere in this Indenture shall limit the obligation of the Company to
pay Additional Amounts with respect to the Securities of any series pursuant to the terms, if any,
established pursuant to Section 301 with respect to the Securities of such series.
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Section 1005
Corporate Existence.
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Subject to Article Eight, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) the corporate existence of the Company, (ii) the
existence (corporate or other) of each Significant Subsidiary of the Company and (iii) the rights
(charter and statutory), licenses and franchises of the Company and each of its Significant
Subsidiaries;
provided, however
, that the Company shall not be required to preserve the existence
(corporate or other) of any of its Significant Subsidiaries or any such right, license or franchise
of the Company or any of its Significant Subsidiaries if the Board of Directors of the Company
determines that the preservation thereof is no longer desirable in the conduct of the business of
the Company and its Significant Subsidiaries taken as a whole and that the loss thereof will not be
disadvantageous in any material respect to the Holders.
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Section 1006
Maintenance of Properties.
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The Company will, and will cause each Significant Subsidiary to, cause all its properties used
or useful in the conduct of its business to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that nothing in this Section
shall prevent the Company or any Significant Subsidiary from discontinuing the operation and
maintenance of any of their respective properties if such discontinuance is, in the judgment of the
Board of Directors of the Company or of any Significant Subsidiary, as the case may be, desirable
in the conduct of its business.
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Section 1007
Waiver of Certain Covenants.
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The Company may omit in any particular instance to comply with any term, provision or
condition set forth in Sections 1002 to 1006, inclusive, with respect to the Securities of any
series and, if expressly provided pursuant to Section 301(18), any additional covenants applicable
to the Securities of such series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series, by Act of such Holders,
either shall waive such compliance
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in such instance or generally shall have waived compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
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Section 1008
Company Statement as to Compliance.
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The Company shall deliver to the Trustee, within 180 days after the end of each fiscal year, a
written statement (which need not be contained in or accompanied by an Officers’ Certificate)
signed by the principal executive officer, the principal financial officer or the principal
accounting officer of the Company, stating whether or not, to the best of his or her knowledge, the
Company is in default in the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to notice requirements or periods of grace) and if the
Company shall be in default, specifying all such defaults and the nature and status thereof of
which he or she may have knowledge.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
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Section 1101
Applicability of Article.
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Redemption of Securities of any series at the option of the Company as permitted or required
by the terms of such Securities shall be made in accordance with the terms of such Securities and
(except as otherwise provided herein or pursuant hereto) this Article.
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Section 1102
Election to Redeem; Notice to Trustee.
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The election of the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of less than all of the
Securities of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series to be redeemed and,
in the event that the Company shall determine that the Securities of any series to be redeemed
shall be selected from Securities of such series having the same issue date, interest rate or
interest rate formula, Stated Maturity and other terms (the “Equivalent Terms”), the Company shall
notify the Trustee of such Equivalent Terms.
In the case of any redemption of Securities (A) prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this Indenture or (B)
pursuant to an election of the Company which is subject to a condition specified in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish to the Trustee an
Officers’ Certificate evidencing compliance with such restriction or condition.
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Section 1103
Selection by Trustee of Securities to be Redeemed.
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If less than all of the Securities of any series are to be redeemed or if less than all of the
Securities of any series with Equivalent Terms are to be redeemed, the particular Securities to be
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redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee
from the Outstanding Securities of such series or from the Outstanding Securities of such series
with Equivalent Terms, as the case may be, not previously called for redemption, by lot or such
method as the Trustee shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal amount of Registered Securities of such series;
provided,
however
, that no such partial redemption shall reduce the portion of the principal amount of a
Security of such series not redeemed to less than the minimum denomination for a Security of such
series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security Registrar (if other than
itself) in writing of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
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 Securities redeemed or to
be redeemed only in part, to the portion of the principal of such Securities which has been or is
to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the Securities of any series,
if any Security selected for partial redemption is converted or exchanged for Common Stock or other
securities or property in part before termination of the conversion or exchange right with respect
to the portion of the Security so selected, the converted or exchanged portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have
been converted or exchanged during a selection of Securities to be redeemed shall be treated by the
Trustee as Outstanding for the purpose of such selection.
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Section 1104
Notice of Redemption.
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Notice of redemption shall be given in the manner provided in Section 106, not less than 30
nor more than 60 days prior to the Redemption Date, unless a shorter period is specified in the
Securities to be redeemed, to the Holders of Securities to be redeemed. Failure to give notice by
mailing in the manner herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect
the validity of the proceedings for the redemption of any other Securities or portions thereof.
Any notice that is mailed to the Holder of any Registered Securities in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not such Holder
receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amount) of the
particular Security or Securities to be redeemed,
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(4) that, in case any Security is to be redeemed in part only, on and after the
Redemption Date, upon surrender of such Security, the Holder of such Security will receive,
without charge, a new Security or Securities of authorized denominations for the principal
amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become due and payable upon
each such Security or portion thereof to be redeemed, together (if applicable) with accrued
and unpaid interest, if any, thereon (subject, if applicable, to the provisos to the first
paragraph of Section 1106), and, if applicable, that interest thereon shall cease to accrue
on and after said date,
(6) the place or places where such Securities, together (in the case of Bearer
Securities) with all Coupons appertaining thereto, if any, maturing after the Redemption
Date, are to be surrendered for payment of the Redemption Price and any accrued interest and
Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities of any series, if
any, surrendered for redemption must be accompanied by all Coupons maturing subsequent to the
date fixed for redemption or the amount of any such missing Coupon or Coupons will be
deducted from the Redemption Price, unless security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any Registered Securities
of such series are not to be redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on the Redemption Date pursuant to Section
305 or otherwise, the last date, as determined by the Company, on which such exchanges may be
made,
(10) in the case of Securities of any series that are convertible or exchangeable into
Common Stock or other securities or property, the then current conversion or exchange price
or rate, the date or dates on which the right to convert or exchange the principal of the
Securities of such series to be redeemed will commence or terminate, as applicable, and the
place or places where and the Persons to whom such Securities may be surrendered for
conversion or exchange,
(11) the CUSIP number or the Euroclear or the Cedel reference numbers of such
Securities, if any (or any other numbers used by a Depository to identify such Securities),
and
(12) if the Redemption Price or any portion thereof shall be payable, at the option of
the Company or any Holders, in cash or in Common Stock or other securities or property (or a
combination thereof), a statement as to whether the Company has elected to pay the Redemption
Price in cash or Common Stock or other securities or property or a combination thereof and,
if applicable, the portion of the Redemption Price that is to be paid in cash, Common Stock
or other securities or property.
A notice of redemption published as contemplated by Section 106 need not identify particular
Registered Securities to be redeemed.
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Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request delivered at least 10 days before the date such
notice is to be given (unless a shorter period shall be acceptable to the Trustee), by the Trustee
in the name and at the expense of the Company.
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Section 1105
Deposit of Redemption Price.
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On or prior to noon (local time in New York City) on any Redemption Date, the Company shall
deposit, with respect to the Securities of any series called for redemption pursuant to Section
1104, 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 1003) an amount of money in the
applicable Currency sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date, unless otherwise specified pursuant to Section 301 for or in the
Securities of such series) any accrued interest on and Additional Amounts with respect to, all such
Securities or portions thereof which are to be redeemed on that date, except that, if the
Securities of such series are convertible or exchangeable into Common Stock or other securities or
property, no such deposit shall be required with respect to any such Securities (or portions
thereof) which have been converted or exchanged prior to such Redemption Date.
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Section 1106
Securities Payable on Redemption Date.
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Notice of redemption having been given as aforesaid, the Securities so to be redeemed (except,
in the case of Securities which are convertible or exchangeable into Common Stock or other
securities or property, any such Securities which shall have been so converted or exchanged prior
to the applicable Redemption Date) shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, together with (unless otherwise provided with respect to the
Securities of such series pursuant to Section 301) accrued and unpaid interest, if any, thereon and
from and after such date (unless the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities shall cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided
below, shall be void. Upon surrender of any such Security for redemption in accordance with said
notice, together with all Coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together with, unless otherwise
provided in or pursuant to this Indenture, any accrued and unpaid interest thereon and Additional
Amounts with respect thereto to but excluding the Redemption Date;
provided, however
, that,
except as otherwise provided in or pursuant to this Indenture or the Bearer Securities of such
series, installments of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and surrender of Coupons for such interest
(at an Office or Agency located outside the United States except as otherwise provided in Section
1002), and
provided, further
, that, except as otherwise specified in or pursuant to this
Indenture or the Registered Securities of such series, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as such at the close
of business on the Regular Record Dates therefor according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant
Coupons maturing after the Redemption Date, such Security may be paid after deducting from the
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Redemption Price or, at the option of the Company, after payment to the Trustee for the
benefit of the Company of, an amount equal to the face amount of all such missing Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing Coupon in respect of which a deduction shall have been made from
the Redemption Price, such Holder shall be entitled to receive the amount so deducted;
provided,
however
, that any interest or Additional Amounts represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an Office or Agency for such Security located
outside of the United States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium, until paid, shall bear interest from the Redemption Date
at the rate prescribed therefor in the Security or, if no rate is prescribed therefor in the
Security, at the rate of interest, if any, borne by such Security.
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Section 1107
Securities Redeemed in Part.
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Any Registered Security which is to be redeemed only in part shall be surrendered at any
Office or Agency for such Security (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his 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 Registered Security or Securities of the same series, containing
identical terms and provisions, 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. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the Depository for such Security in
global form as shall be specified in the Company Order with respect thereto to the Trustee, without
service charge, a new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
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Section 1201
Applicability of Article.
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The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of a series that by its terms provides for such a sinking fund, except as otherwise
permitted or required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
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 such series is herein referred to as
an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202.
Each
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sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series and this Indenture.
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Section 1202
Satisfaction of Sinking Fund Payments with Securities.
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The Company may, in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of any series to be made pursuant to the terms of such Securities (1) deliver
Outstanding Securities of such series (other than any of such Securities previously called for
redemption or any of such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all unmatured Coupons
appertaining thereto, and (2) apply as a credit Securities of such series which have been redeemed
either at the election of the Company pursuant to the terms of such series of Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities,
provided
that such Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities
of any series in lieu of cash payments pursuant to this Section 1202, the principal amount of
Securities of such series to be redeemed in order to exhaust the aforesaid cash payment shall be
less than $100,000, the Trustee need not call Securities of such series for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied
to the next succeeding sinking fund payment,
provided, however
, that the Trustee or such Paying
Agent shall at the request of the Company from time to time pay over and deliver to the Company any
cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the
Trustee of Securities of that series purchased by the Company having an unpaid principal amount
equal to the cash payment requested to be released to the Company.
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Section 1203
Redemption of Securities for Sinking Fund.
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Not less than 75 days prior to each sinking fund payment date for any series of Securities,
the Company shall deliver to the Trustee an Officers’ Certificate specifying the amount of the next
ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting of Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers’ Certificate shall specify an optional amount to be added
in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not less than 60 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
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Section 1301
Applicability of Article.
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Securities of any series which are repayable at the option of the Holders thereof before their
Stated Maturity shall be repaid in accordance with the terms of the Securities of such series. The
repayment of any principal amount of Securities pursuant to such option of the Holder to require
repayment of Securities before their Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented by such Securities
unless and until the Company, at its option, shall deliver or surrender the same to the Trustee
with a directive that such Securities be cancelled. Notwithstanding anything to the contrary
contained in this Section 1301, in connection with any repayment of Securities, the Company may
arrange for the purchase of any Securities by an agreement with one or more investment bankers or
other purchasers to purchase such Securities by paying to the Holders of such Securities on or
before the applicable repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to pay the repayment
price of such Securities shall be satisfied and discharged to the extent such payment is so paid by
such purchasers.
Unless otherwise expressly stated in this Indenture or pursuant to Section 301 with respect to
the Securities of any series or unless the context otherwise requires, all references in this
Indenture to the repayment of Securities at the option of the Holders thereof (and all references
of like import) shall be deemed to include a reference to the repurchase of Securities at the
option of the Holders thereof.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
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Section 1401
Applicability of Article.
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Whenever this Indenture provides for (i) any action by, or the determination of any of the
rights of, Holders of Securities of any series in which not all of such Securities are denominated
in the same Currency or (ii) any distribution to Holders of Securities of any series in which not
all of such Securities are denominated in the same Currency, in the absence of any provision to the
contrary in or pursuant to this Indenture or the Securities of such series, any amount in respect
of any Security denominated in a Currency other than Dollars shall be treated for any such action,
determination or distribution as that amount of Dollars that could be obtained for such amount on
such reasonable basis of exchange and as of the record date with respect to Registered Securities
of such series (if any) for such action, determination or distribution (or, if there shall be no
applicable record date, such other date reasonably proximate to the date of such distribution) as
the Company may specify in a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
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Section 1501
Purposes for Which Meetings May Be Called.
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A meeting of Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other Act provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
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Section 1502
Call, Notice and Place of Meetings.
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(1) The Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1501, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, or, if Securities of such series have been issued
in whole or in part as Bearer Securities, in London or in such place outside the United
States as the Trustee shall determine. Notice of every meeting of Holders of Securities of
any 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 given, in the manner provided in
Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board Resolution) or the
Holders of at least 10% in principal amount of the Outstanding Securities of any series shall
have requested the Trustee to call a meeting of the Holders of Securities of such series for
any purpose specified in Section 1501, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have mailed notice
of or made the first publication of the notice of such meeting within 21 days after receipt
of such request (whichever shall be required pursuant to Section 106) or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or the Holders
of Securities of such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York, or, if Securities
of such series are to be issued as Bearer Securities, in London for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in clause (1) of this
Section.
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Section 1503
Persons Entitled to Vote at Meetings.
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To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall
be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by
an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of
such series by such Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote
at such meeting and their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
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Section 1504
Quorum; Action.
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The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a
series shall constitute a quorum for a meeting or duly reconvened meeting of Holders of Securities
of such series;
provided, however
, that if any action is to be taken at such meeting with respect
to a consent or waiver which this Indenture expressly provides may be given by the Holders of at
least 66-2/3% in principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66-2/3% in principal amount of the Outstanding Securities of such series shall constitute a
quorum. In the absence of a quorum within 30 minutes after the time appointed for any such meeting,
the meeting shall, if convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(1), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by
the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities
of that series;
provided, however
, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction, notice, consent, waiver
or other Act which this Indenture expressly provides may be made, given or taken by the Holders of
at least 66-2/3% in principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly convened and at which a quorum is present as aforesaid only by
the affirmative vote of the Holders of at least 66-2/3% in principal amount of the Outstanding
Securities of that series; and
provided, further
, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization, direction, notice,
consent, waiver or other Act which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders of Securities of such
series and the Coupons appertaining thereto, whether or not such Holders were present or
represented at the meeting.
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Section 1505
Determination of Voting Rights; Conduct and Adjournment of Meetings.
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(1) Notwithstanding any other provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting of Holders of Securities of
such series in regard to proof of the holding of Securities of such series and of the
appointment of
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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 appropriate.
Except as otherwise permitted or required by any such regulations, the holding of Securities
shall be proved in the manner specified in Section 104 and the appointment of any proxy shall
be proved in the manner specified in Section 104 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized
by Section 104 to certify to the holding of Bearer Securities. Such regulations may provide
that written instruments appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(2) 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 Holders of Securities
as provided in Section 1502(2), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy shall be entitled
to one vote for each $1,000 principal amount of Securities of such series 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. If the Securities of such series are issuable in minimum denominations of
less than $1,000, then a Holder of such a Security in a principal amount of less than $1,000
shall be entitled to a fraction of one vote which is equal to the fraction that the principal
amount of such Security bears to $1,000. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called pursuant to Section
1502 at which a quorum is present may be adjourned from time to time by Persons entitled to
vote a majority in principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without further notice.
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Section 1506
Counting Votes and Recording Action of Meetings.
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The vote upon any resolution submitted to any meeting of Holders of Securities of any 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 and serial
numbers of the Outstanding 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 triplicate of all votes cast at the meeting. A record, at least
in triplicate, of the proceedings of each meeting of Holders of Securities of any series 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 given as provided in Section 1502 and, if
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applicable, Section 1504. Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy shall be delivered to the
Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
* * * * *
This instrument 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the day and year first above written.
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WESTERN ALLIANCE BANCORPORATION
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By:
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/s/ Randall S. Theisen
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Name:
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Randall S. Theisen
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Title:
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Senior Vice President, General Counsel and
Assistant Vice President
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WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
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By:
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/s/ Richard Prokosch
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Name:
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Richard Prokosch
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Title:
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Vice President
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Signature Page to Base Indenture