Exhibit 4.1
OLD REPUBLIC INTERNATIONAL CORPORATION
to
WILMINGTON TRUST COMPANY
Trustee
Indenture
Dated as of
August 15, 1992
Providing for the Issuance of Debt Securities in Series
TABLE OF CONTENTS
ARTICLE ONE
Definitions and Other Provisions of General Application
|
|
|
|
|
Section 101.
Definitions
|
|
|
1
|
|
Act
|
|
|
2
|
|
Affiliate
|
|
|
2
|
|
Authenticating Agent
|
|
|
2
|
|
Board of Directors
|
|
|
2
|
|
Board Resolution
|
|
|
2
|
|
Business Day
|
|
|
2
|
|
Commission
|
|
|
2
|
|
Common Stock
|
|
|
3
|
|
Company
|
|
|
3
|
|
Company Request
|
|
|
3
|
|
Convertible Debt Securities
|
|
|
3
|
|
Corporate Trust Office
|
|
|
3
|
|
Corporation
|
|
|
3
|
|
Debt Security Register
|
|
|
3
|
|
Debt Securities
|
|
|
3
|
|
Debt
|
|
|
3
|
|
Defaulted Interest
|
|
|
3
|
|
Event of Default
|
|
|
3
|
|
Holder
|
|
|
3
|
|
Indenture
|
|
|
3
|
|
Interest Payment Date
|
|
|
4
|
|
Maturity
|
|
|
4
|
|
Officers Certificate
|
|
|
4
|
|
Opinion of Counsel
|
|
|
4
|
|
Original Issue Discount Security
|
|
|
4
|
|
Outstanding
|
|
|
4
|
|
Paying Agent
|
|
|
5
|
|
Person
|
|
|
5
|
|
Predecessor Debt Security
|
|
|
5
|
|
Principal Insurance Subsidiary
|
|
|
5
|
|
Redemption Date
|
|
|
6
|
|
Redemption Price
|
|
|
6
|
|
Regular Record Date
|
|
|
6
|
|
Responsible Officer
|
|
|
6
|
|
Senior Indebtedness
|
|
|
6
|
|
Special Record Date
|
|
|
7
|
|
Stated Maturity
|
|
|
7
|
|
Subordinated Debt Securities
|
|
|
7
|
|
Subsidiary
|
|
|
7
|
|
Trustee
|
|
|
7
|
|
Trust Indenture Act
|
|
|
7
|
|
U.S. Government Obligations
|
|
|
7
|
|
Vice President
|
|
|
8
|
|
Yield to Maturity
|
|
|
8
|
|
i
|
|
|
|
|
Section 102. Compliance Certificates and Opinions
|
|
|
8
|
|
Section 103. Form of Documents Delivered to Trustee
|
|
|
9
|
|
Section 104. Acts of Holders
|
|
|
9
|
|
Section 105. Notices, Etc., to Trustee and Company
|
|
|
10
|
|
Section 106. Notice to Holders; Waiver
|
|
|
11
|
|
Section 107. Conflict with Trust Indenture Act
|
|
|
11
|
|
Section 108. Effect of Headings and Table of Contents
|
|
|
11
|
|
Section 109. Successors and Assigns
|
|
|
11
|
|
Section 110. Separability Clause
|
|
|
11
|
|
Section 111. Benefits of Indenture
|
|
|
12
|
|
Section 112. Governing Law
|
|
|
12
|
|
Section 113. Legal Holidays
|
|
|
12
|
|
|
|
|
|
|
ARTICLE TWO
|
|
|
|
|
|
Debt Security Forms
|
|
|
|
|
|
Section 201. Forms Generally
|
|
|
12
|
|
Section 202. Form of Trustees Certificate of
Authentication
|
|
|
13
|
|
Section 203. Form of Conversion Notice
|
|
|
13
|
|
|
|
|
|
|
ARTICLE THREE
|
|
|
|
|
|
The Debt Securities
|
|
|
|
|
|
Section 301. Amount; Issuable in Series
|
|
|
14
|
|
Section 302. Denominations
|
|
|
16
|
|
Section 303. Execution, Authentication, Delivery and
Dating
|
|
|
16
|
|
Section 304. Temporary Debt Securities
|
|
|
17
|
|
Section 305. Registration, Registration of Transfer and
Exchange
|
|
|
17
|
|
Section 306. Mutilated, Destroyed, Lost and Stolen Debt
Securities
|
|
|
18
|
|
Section 307. Payment of Interest; Interest Rights
Preserved
|
|
|
19
|
|
Section 308. Persons Deemed Owners
|
|
|
21
|
|
Section 309. Cancellation
|
|
|
21
|
|
Section 310. Computation of Interest
|
|
|
22
|
|
|
|
|
|
|
ARTICLE FOUR
|
|
|
|
|
|
Satisfaction and Discharge
|
|
|
|
|
|
Section 401. Satisfaction and Discharge of Indenture
|
|
|
22
|
|
Section 402. Application of Trust Money
|
|
|
23
|
|
Section 403. Release of Paying Agent
|
|
|
23
|
|
Section 404. Unclaimed Moneys
|
|
|
23
|
|
Section 405. Defeasance
|
|
|
24
|
|
Section 406. Survival of Obligations
|
|
|
25
|
|
ii
|
|
|
|
|
ARTICLE FIVE
|
|
|
|
|
|
Remedies
|
|
|
|
|
|
Section 501. Events of Default
|
|
|
25
|
|
Section 502. Acceleration of Maturity; Rescission and
Annulment
|
|
|
27
|
|
Section 503. Collection of
Indebtedness and Suits for Enforcement by Trustee
|
|
|
28
|
|
Section 504. Trustee May File Proofs of Claim
|
|
|
29
|
|
Section 505. Trustee
May Enforce Claims Without Possession of Debt Securities
|
|
|
30
|
|
Section 506. Application of Money Collected
|
|
|
31
|
|
Section 507. Limitation on Suits
|
|
|
31
|
|
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to Convert
|
|
|
32
|
|
Section 509. Restoration of Rights and Remedies
|
|
|
32
|
|
Section 510. Rights and Remedies Cumulative
|
|
|
32
|
|
Section 511. Delay or Omission Not Waiver
|
|
|
33
|
|
Section 512. Control by Holders
|
|
|
33
|
|
Section 513. Waiver of Past Defaults
|
|
|
33
|
|
Section 514. Undertaking for Costs
|
|
|
34
|
|
Section 515. Waiver of Stay or Extension Laws
|
|
|
34
|
|
|
|
|
|
|
ARTICLE SIX
|
|
|
|
|
|
The Trustee
|
|
|
|
|
|
Section 601. Certain Duties and Responsibilities
|
|
|
35
|
|
Section 602. Notice of Defaults
|
|
|
36
|
|
Section 603. Certain Rights of Trustee
|
|
|
36
|
|
Section 604. Not Responsible for Recitals or Issuance of
Debt Securities
|
|
|
37
|
|
Section 605. May Hold Debt Securities
|
|
|
38
|
|
Section 606. Money Held in Trust
|
|
|
38
|
|
Section 607. Compensation and Reimbursement
|
|
|
38
|
|
Section 608. Disqualification; Conflicting Interest
|
|
|
39
|
|
Section 609. Corporate Trustee Required; Eligibility
|
|
|
45
|
|
Section 610. Resignation and Removal; Appointment of
Successor
|
|
|
46
|
|
Section 611. Acceptance of Appointment by Successor
|
|
|
47
|
|
Section 612. Merger, Conversion, Consolidation or
Succession to Business
|
|
|
48
|
|
Section 613. Preferential Collection of Claims Against
Company
|
|
|
49
|
|
Section 614. Appointment of Authenticating Agent
|
|
|
53
|
|
iii
|
|
|
|
|
|
|
|
|
|
ARTICLE SEVEN
|
|
|
|
|
|
Holders Lists and Reports by Trustee and Company
|
|
|
|
|
|
Section 701. Company to Furnish Trustee Names and
Addresses of Holders
|
|
|
55
|
|
Section 702. Preservation of Information; Communications
to Holders
|
|
|
55
|
|
Section 703. Reports by Trustee
|
|
|
57
|
|
Section 704. Reports by Company
|
|
|
58
|
|
|
|
|
|
|
ARTICLE EIGHT
|
|
|
|
|
|
Consolidation, Merger, Conveyance, Transfer or Lease
|
|
|
|
|
|
Section 801. Company May Consolidate, Etc., Only on
Certain Terms
|
|
|
59
|
|
Section 802. Successor Corporation Substituted
|
|
|
60
|
|
|
|
|
|
|
ARTICLE NINE
|
|
|
|
|
|
Supplemental Indentures
|
|
|
|
|
|
Section 901. Supplemental Indentures
Without Consent of Holders
|
|
|
60
|
|
Section 902. Supplemental Indentures with Consent of
Holders
|
|
|
61
|
|
Section 903. Execution of Supplemental Indentures
|
|
|
62
|
|
Section 904. Effect of Supplemental Indentures
|
|
|
62
|
|
Section 905. Conformity with Trust Indenture Act
|
|
|
63
|
|
Section 906. Reference in Debt Securities to
Supplemental Indentures
|
|
|
63
|
|
|
|
|
|
|
ARTICLE TEN
|
|
|
|
|
|
Covenants
|
|
|
|
|
|
Section 1001. Payment of Principal, Premium and Interest
|
|
|
63
|
|
Section 1002. Maintenance of Office or Agency
|
|
|
63
|
|
Section 1003. Money for Debt Security Payments To Be Held
in Trust
|
|
|
64
|
|
Section 1004. Statement by Officers as to Default
|
|
|
65
|
|
Section 1005. Limitation on Liens on Stock of Principal
Insurance Subsidiaries
|
|
|
66
|
|
Section 1006. Limitations on Issue or Disposition of Stock
of Principal Insurance Subsidiaries
|
|
|
66
|
|
Section 1007. Waiver of Certain Covenants
|
|
|
67
|
|
iv
|
|
|
|
|
ARTICLE ELEVEN
|
|
|
|
|
|
Redemption of Debt Securities
|
|
|
|
|
|
Section 1101. Applicability of Article
|
|
|
67
|
|
Section 1102. Election to Redeem; Notice to Trustee
|
|
|
67
|
|
Section 1103. Selection by Trustee of Debt Securities to Be
Redeemed
|
|
|
67
|
|
Section 1104. Notice of Redemption
|
|
|
68
|
|
Section 1105. Deposit of Redemption Price
|
|
|
69
|
|
Section 1106. Debt Securities Payable on Redemption Date
|
|
|
69
|
|
Section 1107. Debt Securities Redeemed in Part
|
|
|
70
|
|
|
|
|
|
|
ARTICLE TWELVE
|
|
|
|
|
|
Sinking Fund
|
|
|
|
|
|
Section 1201. Applicability of Article
|
|
|
70
|
|
Section 1202. Satisfaction of Sinking Fund Payments with
Debt Securities
|
|
|
70
|
|
Section 1203. Redemption of Debt Securities for Sinking
Fund
|
|
|
71
|
|
|
|
|
|
|
ARTICLE THIRTEEN
|
|
|
|
|
|
Convertible Debt Securities
|
|
|
|
|
|
Section 1301. Applicability of Article
|
|
|
72
|
|
Section 1302. Manner of Exercise of Conversion Privilege
|
|
|
72
|
|
Section 1303. Cash Adjustment Upon Conversion
|
|
|
74
|
|
Section 1304. Adjustment of Conversion Rate
|
|
|
75
|
|
Section 1305. Company to Give Notice of Adjustment
|
|
|
78
|
|
Section 1306. Company
to Give Notice of Certain Events
|
|
|
79
|
|
Section 1307. Reservation of Common Stock
|
|
|
80
|
|
Section 1308. Taxes on Conversions
|
|
|
80
|
|
Section 1309. Absence of Preemptive Rights
|
|
|
81
|
|
Section 1310. Debt Securities Converted
|
|
|
81
|
|
Section 1311. Effect of Consolidation, Merger or Sale
|
|
|
81
|
|
Section 1312. Return of Funds
|
|
|
82
|
|
|
|
|
|
|
ARTICLE FOURTEEN
|
|
|
|
|
|
Subordinated Debt Securities
|
|
|
|
|
|
Section 1401. Applicability of Article
|
|
|
82
|
|
Section 1402. No Payment on Subordinated Debt Securities in
Event of Default on Senior Indebtedness
|
|
|
83
|
|
Section 1403. Distribution on Dissolution, Liquidation and
Reorganization
|
|
|
84
|
|
Section 1404. Payment to Holders of Senior Indebtedness
|
|
|
85
|
|
Section 1405. Subrogation
|
|
|
86
|
|
v
|
|
|
|
|
Section 1406. Payment on Subordinated Debt Securities
Permitted
|
|
|
87
|
|
Section 1407. Authorization of Holders to Trustee to Effect
Subordination
|
|
|
87
|
|
Section 1408. Trustee as Holder of Senior Indebtedness
|
|
|
88
|
|
Section 1409. Notices to Trustee
|
|
|
88
|
|
Section 1410. No Fiduciary Duty by Trustee to Holders of
Senior Indebtedness
|
|
|
88
|
|
Section 1411. Paying Agent Treated as Trustee
|
|
|
88
|
|
vi
Old Republic International Corporation
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of August 15, 1992
|
|
|
|
|
|
Trust Indenture
|
|
|
|
|
|
Act Section
|
|
|
|
Indenture Section
|
Section 310
|
|
(a) (1)
|
|
609
|
|
|
|
(a) (2)
|
|
609
|
|
|
|
(a) (3)
|
|
Not Applicable
|
|
|
(a) (4)
|
|
Not Applicable
|
|
|
(b)
|
|
608
|
|
|
|
|
|
610
|
|
|
|
|
|
|
|
Section 311
|
|
(a)
|
|
613
|
(a)
|
|
|
(b)
|
|
613
|
(b)
|
|
|
(b) (2)
|
|
703
|
(a) (2)
|
|
|
|
|
703
|
(b)
|
|
|
|
|
|
|
Section 312
|
|
(a)
|
|
701
|
|
|
|
|
|
702
|
(a)
|
|
|
(b)
|
|
702
|
(b)
|
|
|
(c)
|
|
702
|
(c)
|
|
|
|
|
|
|
Section 313
|
|
(a)
|
|
703
|
(a)
|
|
|
(b)
|
|
703
|
(b)
|
|
|
(c)
|
|
703
|
(a)
|
|
|
|
|
703
|
(b)
|
|
|
(d)
|
|
703
|
(c)
|
|
|
|
|
|
|
Section 314
|
|
(a)
|
|
704
|
|
|
|
(b)
|
|
Not Applicable
|
|
|
(c) (1)
|
|
102
|
|
|
|
(c) (2)
|
|
102
|
|
|
|
(c) (3)
|
|
Not Applicable
|
|
|
(d)
|
|
Not Applicable
|
|
|
(e)
|
|
102
|
|
|
|
|
|
|
|
Section 315
|
|
(a)
|
|
601
|
(a)
|
|
|
(b)
|
|
602
|
|
|
|
|
|
703
|
(a) (6)
|
|
|
(c)
|
|
601
|
(b)
|
|
|
(d)
|
|
601
|
(c)
|
|
|
(d) (1)
|
|
601
|
(a) (1)
|
|
|
(d) (2)
|
|
601
|
(c) (2)
|
|
|
(d) (3)
|
|
601
|
(c) (3)
|
|
|
(e)
|
|
514
|
|
vii
|
|
|
|
|
|
Trust Indenture
|
|
|
|
|
|
Act Section
|
|
|
|
Indenture Section
|
Section 316
|
|
(a)
|
|
101
|
|
|
|
(a) (1) (A)
|
|
502
|
|
|
|
|
|
512
|
|
|
|
(a) (1) (B)
|
|
513
|
|
|
|
(a) (2)
|
|
Not Applicable
|
|
|
(b)
|
|
508
|
|
|
|
|
|
|
|
Section 317
|
|
(a) (1)
|
|
503
|
|
|
|
(a) (2)
|
|
504
|
|
|
|
(b)
|
|
1003
|
|
|
|
|
|
|
|
Section 318
|
|
(a)
|
|
107
|
|
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
viii
INDENTURE, dated as of August 15, 1992 between Old Republic International Corporation, a
corporation duly organized and existing under the laws of the State of Delaware (herein called the
Company), having its principal executive office at 307 North Michigan Avenue, Chicago, Illinois,
and Wilmington Trust Company, a banking corporation duly organized and existing under the laws of
the State of Delaware, as Trustee (herein called the Trustee).
Recitals of the Company
The Company has duly authorized the creation and the issue from time to time of its Debt Securities
(herein called the Debt Securities) to be issued in one or more series of substantially the tenor
and amount hereinafter set forth, and to provide therefor the Company has duly authorized the
execution and delivery of this Indenture.
All things necessary to make the Debt Securities, when executed by the Company and authenticated
and delivered hereunder and duly issued by the Company, the valid obligations of the Company, and
to make this Indenture a valid agreement of the Company, in accordance with their and its terms,
have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Debt Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Debt Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101.
Definitions
.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(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 generally accepted accounting principles, and, except as otherwise herein expressly
provided, the term generally accepted
accounting principles with respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of such computation; and
(4) the words herein, hereof and hereunder and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that Article.
Act when used with respect to any Holder has the meaning specified in Section 104.
Affiliate of any specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified Person. For 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 to act on behalf of the Trustee
to authenticate Debt Securities.
Board of Directors means either the board of directors of the Company or any duly authorized
committee of that board.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.
Business Day means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in Wilmington, Delaware are authorized or obligated by law or executive
order to close.
Commission means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or, if at any time after the execution of this
instrument 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.
2
Common Stock means all shares now or hereafter authorized of the class of the Common Stock, $1.00
par value, of the Company currently authorized and stock of any other class into which such shares
may hereafter have been changed.
Company means the Person named as the Company in the first paragraph of this instrument until a
successor corporation shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor corporation.
Company Request or Company Order means a written
request or order signed in the name of the Company by its Chairman of the Board, a Vice Chairman,
its President, or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
Convertible Debt Securities means Debt Securities which are convertible into shares of Common
Stock in accordance with Article Thirteen hereof.
Corporate Trust Office means the principal office of the Trustee in Wilmington, Delaware at which
at any particular time its corporate trust business shall be administered, which office at the date
of this Indenture is located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890.
Corporation includes corporations, associations, companies and business trusts.
Debt Security Register and Debt Security Registrar have the respective meanings specified in
Section 305.
Debt Securities has the meaning stated in the first recital of this Indenture and, more
particularly, means any evidences of indebtedness authenticated and designated under this
Indenture.
Debt has the meaning specified in Section 1005.
Defaulted Interest has the meaning specified in Section 307.
Event of Default has the meaning specified in Section 501.
Holder means a Person in whose name a Debt Security is registered in the Debt Security Register.
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.
3
Interest Payment Date means the Stated Maturity of an installment of interest on the Debt
Securities.
Maturity when used with respect to any Debt Security means the date on which the principal of
such Debt Security becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
Officers Certificate means a certificate signed by the Chairman of the Board, a Vice Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee.
Opinion of Counsel means a written opinion of counsel, who may be counsel for the Company, and
who shall be acceptable to the Trustee.
Original Issue Discount Security shall mean any Debt Security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 502.
Outstanding when used with respect to Debt Securities, or Debt Securities of any series, means,
as of the date of determination, all such Debt Securities theretofore authenticated and delivered
under this Indenture,
except
:
(i) Debt Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Debt Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Debt Securities;
provided
that, if such Debt
Securities are to be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made; and
(iii) Debt Securities in exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant to this Indenture;
provided,
however,
that in determining whether the Holders of the requisite principal
amount of the Outstanding Debt Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debt Securities of such series owned
by the Company or any other obligor upon the Debt Securities of such series or any Affiliate of the
Company or
4
of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which the Trustee knows
to be so owned shall be so disregarded. Debt Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgees right so to act with respect to such Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or any Affiliate of the Company or of such
other obligor.
In determining whether the Holders of the requisite principal amount of Outstanding Debt Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and payable as of the
date of such determination
upon a declaration of acceleration of the maturity thereof pursuant to Section 502.
Paying Agent means any Person authorized by the Company to pay the principal of (and premium, if
any) or interest on any Debt Securities on behalf of the Company.
Person means any individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or political subdivision
thereof.
Predecessor Debt Security of any particular Debt Security of any series means every previous Debt
Security of such series evidencing all or a portion of the same debt as that evidenced by such
particular Debt Security of such series; and, for the purposes of this definition, any Debt
Security of any series authenticated and delivered under Section 306 in exchange for or in lieu of
a mutilated, destroyed, lost or stolen Debt Security of such series shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Debt Security of such series.
Principal Insurance Subsidiary means each of Old Republic Life Insurance Company, Old Republic
Insurance Company, Old Republic Life Insurance Company of New York, Title Insurance Company of
Minnesota, Republic Mortgage Insurance Company, Bituminous Casualty Corporation and Great West
Casualty Company and any successor to all or a principal part of the business or properties of any
thereof.
5
Redemption Date, when used with respect to any Debt Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
Redemption Price, when used with respect to any Debt Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
Regular Record Date for the interest payable on any Interest Payment Date means the date, if any,
specified in the Debt Securities of any series as the record date for determination of Holders to
whom interest is payable on the next succeeding Interest Payment Date.
Responsible Officer, when used with respect to the Trustee, means the chairman or any
vice-chairman of the board of directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, any
trust officer, the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the particular subject.
Senior Indebtedness means the principal of, premium, if any, and unpaid interest on the
following, whether outstanding at the date hereof or thereafter incurred or created: (a)
indebtedness of the Company for money borrowed (including purchase-money obligations) evidenced by
notes or other written obligations, (b) indebtedness of the Company evidenced by notes, debentures,
bonds or other securities issued under the provisions of an indenture or similar instrument, (c)
obligations of the Company as lessee under capitalized leases and leases of property made as part
of any sale and leaseback transactions, (d) indebtedness of others of any of the kinds described in
the preceding clauses (a) through (c) assumed or guaranteed by the Company and (e) renewals,
extensions and refundings of, and indebtedness and obligations of a successor corporation issued in
exchange for or in replacement of, indebtedness or obligations of the kinds described in the
preceding clauses (a) through (d), unless in the case of any particular indebtedness, obligation,
renewal, extension or refunding the instrument creating
or evidencing the same or the assumption or guarantee thereof expressly provides that such
indebtedness, obligation, renewal, extension or refunding is not superior in right of payment to
the Subordinated Debt Securities, but Senior Indebtedness shall not include the Subordinated Debt
Securities or any indebtedness, obligation, renewal, extension or refunding as is by its terms
6
expressly stated to rank pari passu with the Subordinated Debt Securities.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the Trustee
pursuant to Section 307.
Stated Maturity, when used with respect to any Debt Security or any installment of interest
thereon, means the date specified in such Debt Security as the fixed date on which the principal of
such Debt Security or such installment of interest is due and payable.
Subordinated Debt Securities means Debt Securities which are subordinate in accordance with the
terms of Article Fourteen.
Subsidiary means a corporation more than 50% of the outstanding voting stock of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and
one or more other Subsidiaries. For the purposes of this definition, voting stock means stock
which ordinarily has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any contingency.
Trustee means the Person named as the Trustee in the first paragraph of this instrument until a
successor Trustee shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter Trustee shall mean such successor Trustee.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of which
this instrument was executed, except as provided in Section 905.
U.S. Government Obligations means securities which are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of a person controlled or supervised by and acting as an agency or instrumentality of the United
States of America the timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America which, in either case, are not callable or
redeemable at the option of the issuer thereof or otherwise subject to prepayment, and shall also
include a depository receipt issued by a New York Clearing House bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the account of the
holder of a 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
7
amount received by the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation evidenced by such depository
receipt.
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.
Yield to Maturity shall mean the yield to maturity, calculated at the time of issuance of a
series of Debt Securities or, if applicable, at the most recent redetermination of interest on such
series, in each case calculated in accordance with accepted financial
practice.
Section 102.
Compliance Certificates and Opinions
.
Upon any application or request by the Company or any other obligor upon any series of Debt
Securities to the Trustee to take any action under any provision of this Indenture, the Company or
such other obligor upon such series of the Debt Securities shall furnish to the Trustee an
Officers Certificate stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for
in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which
the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
8
(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 a certificate or opinion of, or representations by, counsel unless such officer
knows, or in the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate or 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, they may, but need
not, be consolidated and form one instrument.
Section 104.
Acts of Holders
.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred
to as the Act of the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to
9
Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments or deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Debt Securities shall be proved by the Debt Security Register or by a
certificate of the Debt Security Registrar.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Debt Security shall bind every future Holder of the same Debt Security and the Holder
of every Debt Security issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon such Debt
Security.
Section 105.
Notices, Etc., to Trustee and Company
.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or furnished to, or filed
with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid,
to the Company addressed to it 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.
10
Section 106.
Notice to Holders; Waiver
.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at his address as it appears in the Debt Security
Register, not later than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 107.
Conflict with Trust Indenture Act
.
If any provision hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such
required provision shall control.
Section 108.
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.
Section 109.
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 110.
Separability Clause
.
In case any provision in this Indenture or in the Debt Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
11
Section 111.
Benefits of Indenture
.
Nothing in this Indenture or in the Debt Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, the holders of Senior Indebtedness
and the Holders of Debt Securities, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112.
Governing Law
.
This Indenture and the Debt Securities shall be governed by and construed in accordance with the
laws of the State of New York,
provided, however
, that the rights, duties and liabilities
of the Trustee shall be governed by and construed in accordance with the laws of the State of
Delaware so long as the Wilmington Trust Company is Trustee.
Section 113.
Legal Holidays
.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Debt
Security or the last date on which a Holder has the right to convert his Debt Securities shall not
be a Business Day, then (notwithstanding any other provision of this Indenture or of the Debt
Securities) payment of interest or principal (and premium, if any) or conversion of the Debt
Securities need not be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, or on such last day for conversion, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case
may be.
ARTICLE TWO
Debt Security Forms
Section 201.
Forms Generally
.
The Debt Securities of each series shall be in substantially such form as shall be established by
or pursuant to a resolution or resolutions of the Board of Directors or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and
other variations as are
required or permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be required to comply with
the rules of any securities exchange or as may, consistently herewith, be determined by the
officers executing such Debt Securities, as evidenced by their execution of the Debt Securities.
12
The definitive Debt Securities shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Debt Securities may be listed, all
as determined by the officers executing such Debt Securities, as evidenced by their execution of
such Debt Securities.
Section 202.
Form of Trustees Certificate of Authentication
.
This is one of the Debt Securities referred to in the within-mentioned Indenture.
|
|
|
|
|
|
Wilmington Trust Company
as Trustee
|
|
|
By:
|
|
|
|
|
Authorized Signature
|
|
|
|
|
|
|
Section 203.
Form of Conversion Notice
.
To Old Republic International Corporation:
The undersigned owner of this Debt Security hereby irrevocably exercises the option to convert this
Debt Security, or portion hereof (which is $1,000 or an integral multiple thereof) below
designated, into shares of Common Stock of Old Republic International Corporation in accordance
with the terms of the Indenture referred to in this Debt Security, and directs that the shares
issuable and deliverable upon
the conversion, together with any check in payment for fractional shares and any Debt Securities
representing any unconverted principal amount hereof, be issued and delivered to the registered
holder hereof unless a different name has been indicated below. If shares are to be issued in the
name of a person other than the undersigned, the undersigned will pay all transfer taxes payable
with respect thereto.
13
Fill in for registration of shares of Common Stock and Debt Securities if to be issued otherwise
than to the registered holder.
|
|
|
|
|
|
|
Social Security or
Other Taxpayer
Identifying Number
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Principal Amount
to be Converted
(in an integral multiple
of $1,000, if less than all):
|
|
|
|
|
|
|
|
Please print name and address
|
|
$
|
|
|
(including zip code)
|
|
|
|
|
ARTICLE THREE
The Debt Securities
Section 301.
Amount; Issuable in Series
.
The aggregate principal amount of Debt Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be established in or pursuant
to a resolution
or resolutions of the Board of Directors and set forth in an Officers Certificate, or established
in one or more indentures supplemental hereto, prior to the initial issuance of Debt Securities of
any series:
(1) the title of the Debt Securities of the series (which shall distinguish the Debt Securities of
the series from all other Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt Securities of the series which may
be authenticated and delivered under this Indenture, except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1302;
(3) the date or dates on which the principal (and premium, if any) of the Debt Securities of the
series is payable;
14
(4) the rate or rates at which the Debt Securities of the series shall bear interest, if any, or
the manner of calculation of such rate or rates, and the date or dates from which such interest
shall accrue;
(5) the price or prices at which, the period or periods within which and the terms and conditions
upon which Debt Securities of the series may be redeemed in whole or in part, at the option of the
Company pursuant to any sinking fund or otherwise;
(6) the obligation of the Company to redeem, purchase or repay Debt Securities of the series
pursuant to any sinking fund or analogous provisions;
(7) the terms and conditions upon which the Debt Securities of the series may be convertible into
Common Stock, including the initial conversion rate, the conversion period and any other provisions
in addition to or in lieu of those set forth in this Indenture;
(8) whether such Debt Securities shall constitute Subordinated Debt Securities in accordance with
Article Fourteen hereof;
(9) any other terms of the series (which terms shall not be inconsistent in any material respect
with the provisions of this Indenture unless the terms of this Indenture contemplate that
variations in certain provisions may be established for securities of any series), including any
terms which may be required by or advisable under United States laws or regulations; and
(10) any trustees, authenticating or paying agents, transfer agents, registrars or any other agents
or depositaries with respect to the Debt Securities of the series.
All Debt Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to such resolution or resolutions of the
Board of Directors or in any such indenture supplemental hereto.
The principal of (and premium, if any) and interest on the Debt Securities shall be payable at the
office or agency of the Company in Wilmington, Delaware maintained for such purpose and at any
other office or agency maintained by the Company for such purpose;
provided, however,
that
at the option of the Company, payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Debt Security Register.
15
Section 302.
Denominations
.
The Debt Securities shall be issuable only in registered form without coupons and only in
denominations of $1,000 and any integral multiple thereof.
Any Debt Security or Debt Securities of any series may be exchanged for a Debt Security or
Debt Securities of such series of other authorized denominations, in an equal aggregate principal
amount.
Section 303.
Execution, Authentication, Delivery and Dating
.
The Debt Securities shall be executed on behalf of the Company by its Chairman of the Board,
one of its Vice Chairmen, its President, or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Treasurer, or one of its Assistant Treasurers or its Secretary
or one of its Assistant Secretaries. The signature of any of these officers on the Debt Securities
may be manual or facsimile.
Debt Securities bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the date of such Debt Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Debt Securities executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Debt Securities; and the
Trustee in accordance with such Company Order shall authenticate and deliver such Debt Securities
as in this Indenture provided and not otherwise.
Each Debt Security shall be dated the date of its authentication.
No Debt Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Debt Security a certificate of
authentication substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and delivered hereunder.
16
Section 304.
Temporary Debt Securities
.
Pending the preparation of definitive Debt Securities of any series, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary Debt Securities of
such series which are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive Debt Securities of such
series in lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Debt Securities may determine, as
evidenced by their execution of such Debt Securities.
If temporary Debt Securities of any series are issued, the Company will cause definitive Debt
Securities of such series to be prepared without unreasonable delay. After the preparation of
definitive Debt Securities of any series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series upon surrender of the temporary Debt
Securities of such series at any office or agency of the Company designated pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of any one or more temporary
Debt Securities of any series the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Debt Securities of such series
of authorized denominations. Until so exchanged the temporary Debt Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Debt Securities
of such series.
Section 305.
Registration, Registration of Transfer and Exchange
.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency designated pursuant to
Section 1002 being herein sometimes collectively referred to as the Debt Security Register) in
which, subject to such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Debt Securities and of transfers of Debt Securities. The Trustee is hereby
appointed Debt Security Registrar for the purpose of registering Debt Securities and transfers of
Debt Securities as herein provided.
Upon surrender for registration of transfer of any Debt Security of any series at an office or
agency of the Company designated pursuant to Section 1002 for such purpose, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Debt Securities of such series of any authorized
denominations, of a like aggregate principal amount.
17
The Company may, at its option, provide for alternative methods or forms for evidencing and
recording the ownership of Debt Securities. As provided in Section 901, the Company may amend the
Indenture to establish such alternative methods or forms.
At the option of the Holder, Debt Securities of any series may be exchanged for other Debt
Securities of such series of any authorized denominations, of a like aggregate principal amount,
upon surrender of the Debt Securities to be exchanged at such office or agency. Whenever any Debt
Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Debt Securities which the Holder making the exchange is entitled to
receive.
All Debt Securities issued upon any registration of transfer or exchange of Debt Securities
shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Debt Securities surrendered upon such registration of
transfer or exchange.
Every Debt Security presented or surrendered for registration of transfer or for exchange
shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the Debt Security Registrar
duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge to the Holder shall be made for any registration of transfer or exchange of
Debt Securities, but the Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of transfer or exchange
of Debt Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1302 not involving
any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange any Debt
Security of a series being redeemed during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of Debt Securities selected for redemption
under Section 1104 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Debt Security so selected for redemption in whole or in
part, except the unredeemed portion of any Debt Security being redeemed in part.
Section 306.
Mutilated, Destroyed, Lost and Stolen Debt Securities
.
If any mutilated Debt Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Debt Security
18
of the same series of like tenor and principal amount and bearing a number not contemporaneously
outstanding. Unless the Trustee, in its discretion, determines that any such mutilated Debt
Security is authentic, such Debt Security shall be treated as destroyed for purposes of this
Section 306.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Debt Security and (ii) such security or indemnity as may
be required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice of the Company or the Trustee that such Debt Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Debt Security, a new Debt Security of the
same series of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Debt Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Debt Security,
pay such Debt Security.
Upon the issuance of any new Debt 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 Debt Security of any series issued pursuant to this Section in lieu of any
destroyed, lost or stolen Debt Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt Security shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debt Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debt Securities.
Section 307.
Payment of Interest; Interest Rights Preserved
.
Interest on any Debt Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Debt Security (or one
or more Predecessor Debt Securities) is registered at the close of business on the Regular Record
Date for such interest.
19
Any interest on any Debt Security of any series which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called Defaulted Interest) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Debt Securities (or their respective Predecessor Debt Securities) are
registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Debt
Security of any series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the 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
each Holder at his address as it appears in the Debt Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Debt Securities of such series (or their
respective Predecessor Debt Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities
exchange on which the Debt Securities of that series may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
20
Subject to the foregoing provisions of this Section, each Debt Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Debt Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Debt Security.
In the case of any Convertible Debt Security which is converted after any Regular Record Date
and on or prior to the next succeeding Interest Payment Date (other than any Convertible Debt
Security whose Maturity is prior to such Interest Payment Date), interest whose Stated Maturity is
on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly provided for) shall be paid
to the Person in whose name that Convertible Debt Security (or one or more Predecessor Convertible
Debt Securities) is registered at the close of business on such Regular Record Date.
Section 308.
Persons Deemed Owners
.
Prior to due presentment of a Debt 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 Debt
Security is registered as the owner of such Debt Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 307) interest on such Debt Security and
for all other purposes whatsoever, whether or not such Debt Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Section 309.
Cancellation
.
All Debt Securities surrendered for payment, redemption, registration of transfer or exchange
or conversion or for credit against any sinking fund payment pursuant to Section 1202 shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Debt
Securities previously authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Debt Securities so delivered shall be promptly cancelled by the
Trustee. No Debt Securities shall be authenticated in lieu of or in exchange for any Debt
Securities cancelled as provided in this Section, except as expressly permitted by this Indenture.
All cancelled Debt Securities held by the Trustee shall be disposed of as directed by a Company
Order.
21
Section 310.
Computation of Interest
.
Interest on the Debt Securities shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401.
Satisfaction and Discharge of Indenture
.
This Indenture shall cease to be of further effect with respect to the Debt Securities of any
series (except as to any surviving rights of conversion, registration of transfer or exchange of
Debt Securities herein expressly provided for), and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Debt Securities of such series theretofore authenticated and delivered (other
than (i) Debt Securities of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) Debt Securities 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 Debt Securities of such series 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) 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 the purpose an amount sufficient to
pay and discharge the entire
indebtedness on all Debt Securities of such series not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if
22
any) and interest to the date of such deposit (in the case of Debt Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, 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 Debt Securities of such series; 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 with respect to the Debt Securities of such
series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 607 and the obligations of the Trustee to any Authenticating Agent under
Section 614 shall survive.
Section 402.
Application of Trust Money
.
All money deposited with the Trustee with respect to Debt Securities of any series pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the provisions of the
particular Debt Securities of such series 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 (and premium, if any) and interest for
whose payment such money has been deposited with the Trustee.
Section 403.
Release of Paying Agent
.
In connection with the satisfaction and discharge of this Indenture with respect to the Debt
Securities of any or all series, all moneys then held by any Paying Agent under the provisions of
this Indenture with respect to the Debt Securities of such series shall, upon demand of the
Company, be paid to the Trustee and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
Section 404.
Unclaimed Moneys
.
Any moneys deposited with or paid to the Trustee or any Paying Agent for the payment of the
principal of or interest on any Debt Security of any series and not applied but remaining unclaimed
for six years after the date upon which
such principal or interest shall have become due and payable, shall be repaid to the Company
by the Trustee or such Paying Agent on demand and the Holder of such Debt Security of such series
shall thereafter look only to the Company for any payment which such Holder may be entitled to
collect and all liability of the Trustee or any
23
Paying Agent with respect to such moneys shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment may at the expense of the
Company cause to be published once a week for two successive weeks (in each case on any day of the
week) in a newspaper in the Borough of Manhattan, New York, New York, a notice that said moneys
have not been so applied and that after a date named therein any unclaimed balance of said moneys
then remaining will be returned to the Company. It shall not be necessary for more than one such
publication to be made in the same newspaper.
Section 405.
Defeasance
.
Notwithstanding Section 401, the Company shall be deemed to have paid and discharged the
entire indebtedness on all the Debt Securities of any series, the provisions of this Indenture with
respect to Debt Securities of such series (except as to (i) the rights of Holders of such Debt
Securities to receive, from the money and U.S. Government Obligations deposited with the Trustee
pursuant to this Section 405 or the interest and principal received by the Trustee in respect of
such U.S. Government Obligations, payment of the principal of or interest on such Debt Securities
on the Stated Maturity thereof or upon any sinking fund payment date with respect to such Debt
Securities required to be redeemed pursuant to Section 1201, (ii) the Companys obligations with
respect to such Debt Securities under Sections 305, 306, 1001, 1002 and 1003 and (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the obligations of the Company
to the Trustee under Section 607) shall no longer be in effect, and the Trustee, at the expense of
the Company, shall, upon the Companys request, execute proper instruments acknowledging the same,
if:
(1) the Company has deposited or caused to be deposited with the Trustee irrevocably
(irrespective of whether the conditions in clauses (2), (3) and (4) have been satisfied) as
trust funds in trust for the purpose, with reference to this Section 405, (A) money in an
amount, or (B) U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide not later than one
day before the due date of any payment (referred to below) money in an amount, or (C) a
combination thereof, sufficient, 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 (i) the principal of and interest on the outstanding Debt
Securities of such series on the Stated Maturity
of such principal or interest and (ii) the sinking fund payments applicable to the Debt
Securities of such series on the day on which such payments are due and payable in
accordance
24
with the terms of the Indenture and of the Debt Securities of such series;
(2) no Event of Default or event which with the giving of notice or lapse of time or
both would become an Event of Default shall have occurred and be continuing on the date of
such deposit and no Event of Default under Section 501(5) or Section 501(6) or event which
with the giving of notice or lapse of time or both would become an Event of Default under
Section 501(5) or Section 501(6) shall have occurred and be continuing on the 61st day
after such date;
(3) the Company has paid or caused to be paid all other sums payable hereunder
by the Company; and
(4) 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 the entire indebtedness on all Debt Securities of such series
have been complied with.
Section 406.
Survival of Obligations
.
Notwithstanding the satisfaction and discharge of this Indenture with respect to Debt
Securities of any series (including without limitation under Section 405), the obligations of the
Company in Sections 305, 306, 308, 607, 610, 1001, 1002 and 1003, and the obligations of the
Trustee in Sections 401, 402 and 404, shall survive.
ARTICLE FIVE
Remedies
Section 501.
Events of Default
.
Event of Default with respect to Debt Securities of any series, wherever used herein, means
any one of the following events (whatever the reasons for such Event of Default and whether it
shall be occasioned by the provisions of Article Fourteen or 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):
(1) default in the payment of any interest upon any Debt Security of such series when
it becomes due and payable, and continuance of such default for a
period of 30 days; or
25
(2) default in the payment of the principal of (or premium, if any, on) any Debt Security of such
series at its Maturity; or
(3) default in the deposit of any sinking fund payment with respect to Debt Securities of such
series, when and as due by the terms of Sections 1201 and 1203; or
(4) default in the performance, or breach, of any covenant or warranty of the Company with
respect to Debt Securities of such series in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section specifically dealt with),
and continuance of such default or breach for a period of 60 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 10% in principal amount of the Outstanding Debt Securities of such series
affected thereby 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) if an event of default as defined in any mortgage, indenture or instrument under which
there may be issued, or by which there may be secured or evidenced, any indebtedness for money
borrowed of the Company in excess of $5,000,000, whether such indebtedness now exists or shall
hereafter be created, shall happen and shall result in such indebtedness becoming or being declared
due and payable prior to the date on which it would otherwise become due and payable, and such
acceleration shall not be rescinded or annulled, or such indebtedness shall not have been
discharged, within a period of 10 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 10% in
principal amount of the Outstanding Debt Securities (treated as one class) a written notice
specifying such event of default and requiring the Company to cause such acceleration to be
rescinded or annulled or to cause such indebtedness to be discharged and stating that such notice
is a Notice of Default hereunder; provided, however, that if such acceleration shall be rescinded
or annulled or such indebtedness discharged after such 10-day period and prior to acceleration
hereunder, the Event of Default hereunder by reason thereof shall be deemed to have been cured
hereunder without action on the part of the Trustee or the Holders; or
(6) the entry of a decree or order by a court having jurisdiction in the premises adjudging
the Company a bankrupt or insolvent, or approving as properly filed a
26
petition seeking reorganization, arrangement, adjustment or composition of or in respect of
the Company under Federal bankruptcy law or any other applicable Federal or State law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(7) the institution by the Company of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking reorganization
or relief under Federal bankruptcy law or any other applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in furtherance of any
such action.
Section 502.
Acceleration of Maturity; Rescission and Annulment
.
If an Event of Default occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding Debt Securities of any
series may declare the principal (or, if the Debt Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in the terms of such
series) of all the Debt Securities of such series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such
principal (or, if any Debt Securities are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms thereof) shall become immediately due and
payable.
At any time after such a declaration of acceleration has been made 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 a majority in principal amount of the Outstanding Debt Securities of such
series, each series treated as a separate class (or all Debt Securities, as the case may be,
treated as one class), by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
27
(1) the Company has paid or deposited with the Trustee, in accordance and compliance
with the provisions of Article XIV hereof, a sum sufficient to pay:
(A) all overdue installments of interest on all Debt Securities of such series (or
of all Debt Securities as the case may be),
(B) the principal of (and premium, if any, on) any Debt Securities which have become
due otherwise than by such declaration of acceleration and interest thereon at the
rate borne by the Debt Securities of such series (or, Yields to Maturity, in the
case of Original Issue Discount Securities) (or at the respective rates of interest
of all the Debt Securities, as the case may be),
(C) to the extent that payment of such interest is lawful, interest upon overdue
installments of interest at the rate borne by the Debt Securities of such series
(or, Yields to Maturity, in the case of Original Issue Discount Securities) (or at
the respective rates of interest of all the Debt Securities, as the case may be),
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
(2) all Events of Default, other than the non-payment of the principal of Debt
Securities which have become due solely by such declaration of acceleration, have been cured
and 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 and all other obligors upon the Debt Securities of any series covenant that if
(1) default is made in the payment of any installment of interest on any Debt Security
of such series when such interest becomes due and payable and such default continues for a
period of 30 days, or
28
(2) default is made in the payment of the principal of (or premium, if any, on) any
Debt Security of any series at the Maturity thereof,
the Company and such other obligors upon the Debt Securities of such series will, upon demand of
the Trustee, pay to it, for the benefit of the Holders of all Debt Securities of such series, the
whole amount then due and payable on such Debt Securities of such series for principal (and
premium, if any) and interest, with interest upon the overdue principal (and premium, if any) and,
to the extent that payment of such interest shall be legally enforceable, upon overdue installments
of interest, at the rate borne by the Debt Securities (or, Yields to Maturity, in the case of
Original Issue Discount Securities) of such series; and, in addition thereto, such further amount
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.
If the Company or any other obligor upon the Debt Securities of such series fails to pay such
amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same against the Company
or any other obligor upon such Debt Securities and collect the moneys 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 Debt Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders 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 in aid of
the exercise of any power granted herein, 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 Debt Securities of any series or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of
any Debt 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 or any
such other obligor for the payment of overdue principal or
29
interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and premium, if any)
and interest (or, if the Debt Securities of any series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the terms of such
series) owing and unpaid in respect of the Debt Securities of any series 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 and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to vote on behalf of the Holders of any series in any election of any trustee in
bankruptcy or other person performing similar functions, unless prohibited by law or
applicable regulations, and
(iii) to collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder 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,
to pay to the Trustee any amount due 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 607.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Debt Securities of any series or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 505.
Trustee May Enforce Claims Without Possession of Debt Securities
.
All rights of action and claims under this Indenture or the Debt Securities may be prosecuted
and enforced by the Trustee without the possession of any of the Debt Securities 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 of judgment shall,
after provision for the payment of the reasonable compensation, expenses, disbursements and
advances of the
30
Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Debt Securities
in respect of which such judgment has been recovered.
Section 506.
Application of Money Collected
.
Subject to Article Fourteen, any money collected by the Trustee pursuant to this Article with
respect to the Debt 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 on account of
principal (or premium, if any) or interest, upon presentation of the Debt Securities 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 under Section 607; and
Second: To the payment of the amounts then due and unpaid for principal of (and
premium, if any) and interest on the Debt Securities of such series 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 amounts due and payable on such Debt Securities for
principal (and premium, if any) and interest, respectively.
Section 507.
Limitation on Suits
.
No Holder of any Debt Security of any series 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;
(2) the Holders of not less than 25% in principal amount of Outstanding Debt 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 reasonable indemnity 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
31
(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 Debt Securities of such series;
it being understood and intended that no one or more Holders of any series shall have any right in
any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders, 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 the Holders.
|
|
|
Section 508.
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert
.
|
Notwithstanding any other provision in this Indenture, the Holder of any Debt Security shall
have the right, which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 307) interest on such Debt Securities on the respective
Stated Maturities expressed in such Debt Security (or, in the case of redemption, on the Redemption
Date) and, if such Debt Security is a Convertible Debt Security, to so convert such Convertible
Debt Security in accordance with Article Thirteen and to institute suit for the enforcement of any
such payment and right to convert, and such rights shall not be impaired without the consent of
such Holder.
Section 509.
Restoration of Rights and Remedies
.
If the Trustee or any Holder 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, subject to
any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 510.
Rights and Remedies Cumulative
.
No right or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, 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
32
not 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 Debt Security to exercise any
right or remedy accruing upon any Event of Default shall 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 the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 512.
Control by Holders
.
The Holders of a majority in principal amount of the Outstanding Debt Securities of each
series affected (with each series treated as a separate class) 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 Debt Securities of such
series,
provided
that
(1) such direction shall not be in conflict with any rule of law or with this
Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) the Trustee need not follow such direction if doing so would in its reasonable
discretion either involve it in personal liability or be unduly prejudicial to the rights of
Holders of any series so affected not joining in such direction.
Section 513.
Waiver of Past Defaults
.
The Holders of not less than a majority in principal amount of the Outstanding Debt Securities
of any series may on behalf of the Holders of all the Debt Securities of such series waive any past
default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or interest on any Debt
Security, or
(2) 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 Debt Security
affected.
33
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.
Undertaking for Costs
.
All parties to this Indenture agree, and each Holder of any Debt 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, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys
1
fees, 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 shall not apply to any
suit instituted by the Company, 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 the
Outstanding Debt Securities of such 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 on any Debt
Security on or after the respective Stated Maturities expressed in such Debt Security (or, in the
case of redemption, on or after the Redemption Date) or for the enforcement of the right to convert
any Debt Security in accordance with Article Thirteen.
Section 515.
Waiver of Stay or Extension Laws
.
The Company covenants (to the extent that it may lawfully do so) that 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 wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby 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, but will
suffer and permit the execution of every such power as though no such law had been enacted.
34
ARTICLE SIX
The Trustee
Section 601.
Certain Duties and Responsibilities
.
(a) With respect to the Holders of any series of Debt Securities issued hereunder, except
during the continuance of an Event of Default with respect to the Debt Securities of such
particular series,
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture.
(b) In case an Event of Default has occurred with respect to the Debt Securities of any series
and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture with respect to such series of Debt Securities, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own wilful misconduct,
except
that
(1) this Subsection shall not be construed to limit the effect of Subsection (a)
of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders pursuant to
Section 512 relating to the time, method and place of
35
conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602.
Notice of Defaults
.
Within 90 days after the occurrence of any default hereunder with respect to the Debt
Securities of any series, the Trustee shall transmit by mail to all Holders of such series, as
their names and addresses appear in the Debt Security Register, 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 on any Debt Security or in the payment of any sinking fund installment with
respect to 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 or Responsible
Officers of the Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of such series; and
provided, further,
that in the case of any
default of the character specified in Section 501(4), no such notice to Holders of any series
affected 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.
Section 603.
Certain Rights of Trustee
.
Except as otherwise provided in Section 601:
(a) the Trustee may 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 or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or parties;
36
(b) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(c) 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 be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers Certificate;
(d) the Trustee may consult with counsel and the written 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;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note 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 the books, records and premises of
the Company, personally or by agent or attorney; and
(g) 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
responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
Section 604.
Not Responsible for Recitals or Issuance of Debt Securities
.
The recitals contained herein and in the Debt Securities, except the Trustees certificates of
authentication, shall be taken as the statements of the Company, and the Trustee assumes
37
no responsibility for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debt Securities. The Trustee shall not be accountable
for the use or application by the Company of Debt Securities or the proceeds thereof.
Section 605.
May Hold Debt Securities
.
The Trustee, any Authenticating Agent, any Paying Agent, any Debt Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become the owner or
pledgee of Debt Securities and, subject to Sections 608 and 613, may otherwise deal with the
Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Debt Security Registrar or such other agent.
Section 606.
Money Held in Trust
.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 607.
Compensation and Reimbursement
.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(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 its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
38
As security for the performance of the obligations of the Company under this Section the
Trustee shall have a lien prior to the Debt Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust pursuant to Article IV for the payment
of principal of (and premium, if any) or interest on particular Debt Securities.
Section 608.
Disqualification; Conflicting Interest
.
(a) If the Trustee has or shall acquire any conflicting interest, as defined in this
Section, it shall, within 90 days after ascertaining that it has such conflicting interest,
and if an Event of Default to which such conflicting interest relates has not been cured or
duly waived or otherwise eliminated before the end of such 90-day period, either eliminate
such conflicting interest or resign in the manner and with the effect hereinafter specified
in this Article.
(b) In the event that the Trustee shall fail to comply with the provisions of
Subsection (a) of this Section, the Trustee shall, within 10 days after the expiration of
such 90-day period, transmit by mail to all Holders, as their names and addresses appear in
the Debt Security Register, notice of such failure.
(c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting
interest if an Event of Default occurs with respect to the Debt Securities of any series,
and
(1) the Trustee is trustee under another indenture under which any other
securities, or certificates of interest or participation in any other securities, of
the Company are outstanding or is Trustee for more than one outstanding series of
securities, under a single indenture of the Company, unless such other indenture is a
collateral trust indenture under which the only collateral consists of Debt
Securities issued under this Indenture,
provided
that there shall be excluded
from the operation of this paragraph any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of the
Company are outstanding, if
(i) this Indenture and such other indenture or indentures (and all series of
securities issuable thereunder) are wholly unsecured and rank equally and such other
indenture or indentures (and such series) are hereafter qualified under the Trust
Indenture Act, unless the Commission shall have found and declared by
39
order pursuant to Section 305(b) or Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this Indenture (or such series) and the
provisions of such other indenture or indentures (or such series) which are so likely to
involve a material conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting as such under this
Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on application to the
Commission and after opportunity for hearing thereon, that trusteeship under this Indenture
and such other indenture or indentures or under more than one outstanding series under a
single indenture is not so likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to disqualify the
Trustee from acting as such under one of such indentures or with respect to such series;
(2) the Trustee or any of its directors or executive officers is an underwriter for the
Company upon the Debt Securities of any series;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or
is under direct or indirect common control with an underwriter for the Company upon the Debt
Securities of any series;
(4) the Trustee or any of its directors or executive officers is a director, officer, partner,
employee, appointee or representative of the Company, or of an underwriter (other than the Trustee
itself) for the Company who is currently engaged in the business of underwriting, except that (i)
one individual may be a director or an executive officer, or both, of the Trustee and a director or
an executive officer, or both, of the Company but may not be at the same time an executive officer
of both the Trustee and the Company; (ii) if and so long as the number of directors of the Trustee
in office is more than nine, one additional individual may be a director or an executive officer,
or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by
the Company or by any underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other
similar capacity, or, subject to the provisions of paragraph (1) of this Subsection, to act as
trustee whether under an indenture or otherwise;
40
(5) 10% or more of the voting securities of the Trustee is beneficially owned either by the
Company or by any director, partner or executive officer thereof, or 20% or more of such voting
securities is beneficially owned, collectively, by any two or more of such persons; or 10% or more
of the voting securities of the Trustee is beneficially owned either by an underwriter for the
Company or by any director, partner or executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation
which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting
securities, or 10% or more of any other class of security, of the Company not including the Debt
Securities issued under this Indenture and securities issued under any other indenture under which
the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the
Company;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation
which is in default (as hereinafter in this Subsection defined), 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is under direct or indirect common control
with, the Company;
(8) the Trustee is the beneficial owner, or holds as collateral security for an obligation
which is in default (as hereinafter in this Subsection defined), 10% or more of any class of
security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company; or
(9) the Trustee owns, on the date of default upon the Debt Securities of any series or any
anniversary of such default while such default upon the Debt Securities of such series remains
outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee,
guardian, committee or conservator, or in any other similar capacity, an aggregate of 25% or more
of the voting securities, or of any class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting interest under paragraph (6),
(7) or (8) of this Subsection. As to any such securities of which the Trustee acquired ownership
through becoming executor, administrator or testamentary trustee of an estate which included them,
the provisions of the preceding sentence shall not apply, for a period of two years from the date
of such acquisition, to the extent that
41
such securities included in such estate do not exceed 25% of such voting securities or 25%
of any such class of security. Promptly after the dates of any such default upon the Debt
Securities of such series and annually in each succeeding year that such Debt Securities
remain in default, the Trustee shall make a check of its holdings of such securities in any
of the above-mentioned capacities as of such dates. If the Company fails to make payment
in full of the principal of (or premium, if any) or interest on any of the Debt Securities
when and as the same becomes due and payable, and such failure continues for 30 days
thereafter, the Trustee shall make a prompt check of its holdings of such securities in any
of the above-mentioned capacities as of the date of the expiration of such 30-day period,
and after such date, notwithstanding the foregoing provisions of this paragraph, all such
securities so held by the Trustee, with sole or joint control over such securities vested
in it, shall, but only so long as such failure shall continue, be considered as though
beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this
Subsection, or
(10) except under the circumstances described in paragraphs (1), (3), (4) or
(6) of this Subsection, the Trustee shall become a creditor of the Company.
For purposes of paragraph (1) of this subsection only, the term series of securities or
series means a series, class or group of securities issuable under an indenture pursuant to whose
terms holders of one such series may vote to direct the Trustee, or otherwise take action pursuant
to a vote of such holders, separately from holders of another such series, provided, that series
of securities or series shall not include any series of securities issuable under an indenture
if all such series rank equally and are wholly unsecured. The specification of percentages in
paragraphs (5) to (9), inclusive, of this Subsection shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not necessary or sufficient to
constitute direct or indirect control for the purposes of paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection only, (i) the terms
security and securities shall include only such securities as are generally known as corporate
securities, but shall not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust companies or banking firms,
or any certificate of interest or participation in any such note or evidence of indebtedness; (ii)
an obligation shall be deemed to be in default when a default in payment of principal shall have
continued for 30 days or more and shall not
42
have been cured; and (iii) the Trustee shall not be deemed to be the owner or holder of (A) any
security which it holds as collateral security, as trustee or otherwise, for an obligation which is
not in default as defined in clause (ii) above, or (B) any security which it holds as collateral
security under this Indenture, irrespective of any default hereunder, or (C) any security which it
holds as agent for collection, or as custodian, escrow agent or depositary, or in any similar
representative capacity.
(d) For the purposes of this Section:
(1) The term underwriter, when used with reference to the Company, means every person
who, within one year prior to the time as of which the determination is made, has purchased
from the Company with a view to, or has offered or sold for the Company in connection with,
the distribution of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of the usual and customary
distributors or sellers commission.
(2) The term director means any director of a corporation or any individual
performing similar functions with respect to any organization, whether incorporated or
unincorporated.
(3) The term person means an individual, a corporation, a partnership, an
association, a joint-stock company, a trust, an unincorporated organization or a government
or political subdivision thereof. As used in this paragraph, the term trust shall include
only a trust where the interest or interests of the beneficiary or beneficiaries are
evidenced by a security.
(4) The term voting security means any security presently entitling the owner or
holder thereof to vote in the direction or management of the affairs of a person, or any
security issued under or pursuant to any trust, agreement or arrangement whereby a trustee
or trustees or agent or agents for the owner or holder of such security are presently
entitled to vote in the direction or management of the affairs of a person.
(5) The term Company means any obligor upon the Debt Securities.
43
(6) The term executive officer means the president, every vice president, every
trust officer, the cashier, the secretary and the treasurer of a corporation, and any
individual customarily performing similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities specified in this Section
shall be calculated in accordance with the following provisions:
(1) A specified percentage of the voting securities of the Trustee, the Company or any
other person referred to in this Section (each of whom is referred to as a person in this
paragraph) means such amount of the outstanding voting securities of such person as entitles
the holder or holders thereof to cast such specified percentage of the aggregate votes which
the holders of all the outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a person means such percentage
of the aggregate amount of securities of the class outstanding.
(3) The term amount, when used in regard to securities, means the principal amount if
relating to evidences of indebtedness, the number of shares if relating to capital shares
and the number of units if relating to any other kind of security.
(4) The term outstanding means issued and not held by or for the account of the
issuer. The following securities shall not be deemed outstanding within the meaning of this
definition:
(i) securities of an issuer held in a sinking fund relating to securities of the
issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to another class of
securities of the issuer, if the obligation evidenced by such other class of securities is
not in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an obligation of the
issuer not in default as to principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer thereof;
44
provided,
however,
that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the voting rights
thereof.
(5) A security shall be deemed to be of the same class as another security if both
securities confer upon the holder or holders thereof substantially the same rights and
privileges;
provided, however,
that in the case of secured evidences of
indebtedness, all of which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed sufficient to
constitute such series different classes and
provided, further,
that in the case of
unsecured evidences of indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities of different classes,
whether or not they are issued under a single indenture.
(f) Except in the case of a default in the payment of the principal of or interest on any
Debt Securities, or in the payment of any sinking or purchase fund installment, the Trustee shall
not be required to resign as provided by this Section if such Trustee shall have sustained the
burden of proving, on application to the Commission and after opportunity for hearing thereon, that
(i) the Event of Default under the Indenture may be cured or waived during a reasonable period and
under the procedures described in such application, and (ii) a stay of the Trustees duty to resign
will not be inconsistent with the interests of Holders of the Debt Securities of any series. The
filing of such an application shall automatically stay the performance of the duty to resign until
the Commission orders otherwise. Any resignation of the Trustee shall become effective only upon
the appointment of a successor trustee and such successors acceptance of such appointment.
Section 609.
Corporate Trustee Required; Eligibility
.
There shall at all times be a Trustee for each series of Debt Securities hereunder which shall
be a corporation organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia or a corporation or other person permitted to act as
trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of a least $150,000,000 and subject to supervision or examination by
Federal or State authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so
45
published. 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 610.
Resignation and Removal; Appointment of Successor
.
(a) No resignation or removal of the Trustee with respect to any series of Debt Securities and
no appointment of a successor Trustee with respect to any series of Debt Securities pursuant to
this Article shall become effective until the acceptance of appointment by the successor Trustee
under Section 611.
(b) The Trustee may resign at any time with respect to one or more or all series of Debt
Securities by giving written notice thereof to the Company. If an instrument of acceptance by a
successor Trustee with respect to any series shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee, at the expense of the
Company, may petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee with respect to any series of Debt Securities may be removed at any time by
Act of the Holders of a majority in principal amount of the Outstanding Debt Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a Debt Security of such
series for a least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect to any series of Debt
Securities 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 a Board Resolution may remove the Trustee with respect
to the applicable series of Debt Securities, or (ii) subject to Section 514, any Holder who has
been a bona fide Holder of a Debt Security of such series for at least six months, may, on behalf
of himself and all others
46
similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee with respect to such series.
(e) If the Trustee with respect to any series of Debt Securities shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of Trustee with respect to
any series of Debt Securities for any cause, the Company or any other obligor upon the Debt
Securities of such series, by a Board Resolution, shall promptly appoint a successor Trustee with
respect to such series. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to such series shall be appointed
by Act of the Holders of a majority in principal amount of the outstanding Debt Securities of such
series delivered to the Company or any other obligor upon the Debt Securities of such series and
the retiring Trustee, the successor Trustee with respect to such series so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the
successor Trustee with respect to such series appointed by the Company or any other obligor upon
the Debt Securities. If no successor Trustee with respect to such series shall have been so
appointed by the Company or any other obligor upon the Debt Securities of such series or the
Holders of such series and accepted appointment in the manner hereinafter provided, any Holder who
has been a bona fide Holder of a Debt 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 such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to any series of Debt Securities and each appointment of a successor Trustee with respect
to any series of Debt Securities by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of such series as their names and addresses appear in the Debt
Security Register. Each notice shall include the name of the successor Trustee with respect to
such Debt Securities and the address of its Corporate Trust Office.
Section 611.
Acceptance of Appointment by Successor
.
Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee with respect to all or any applicable series of Debt
Securities 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 of the retiring
Trustee with respect to such Debt Securities; but, on request of the Company or the
47
successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its lien, if any, provided
for in Section 607. Upon request of any such 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.
If a successor Trustee is appointed with respect to the Debt Securities of one or more (but
not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the
Debt Securities of any applicable series shall execute and deliver an indenture supplemental hereto
which 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 Debt Securities
of any series as to which the Trustee is not retiring shall continue to be vested in such Trustee,
and 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 and that each such Trustee shall be Trustee of a trust or trusts
under separate indentures.
No successor Trustee shall accept its appointment unless at the time of such acceptance such
Trustee shall be qualified and eligible under this Article.
Section 612.
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 the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise 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 Debt Securities of any series shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Debt Securities of such series so
authenticated with the same effect as if such successor Trustee had itself authenticated such Debt
Securities.
48
Section 613.
Preferential Collection of Claims Against Company
.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Company within three months prior to a
default, as defined in Subsection (c) of this Section, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the Debt Securities and the
holders of other indenture securities, as defined in Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and owing upon any claim as such
creditor in respect of principal or interest, effected after the beginning of such three months
period and valid as against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in paragraph (2) of this
Subsection, or from the exercise of any right of set-off which the Trustee could have exercised if
a petition in bankruptcy had been filed by or against the Company upon the date of such default;
and
(2) all property received by the Trustee in respect of any claims as such creditor, either as
security therefor, or in satisfaction or composition thereof, or otherwise, after the beginning of
such three months period, or an amount equal to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Company and its other creditors in such property or
such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any such claim by any Person
(other than the Company) who is liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third Person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as security for any such claim,
if such property was so held prior to the beginning of such three months period;
49
(C) to realize, for its own account, but only to the extent of the claim hereinafter mentioned,
upon any property held by it as security for any such claim, if such claim was created after the
beginning of such three months period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain the burden of proving
that at the time such property was so received the Trustee had no reasonable cause to believe that
a default, as defined in Subsection (c) of this Section, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or (C), against the release of
any property held as security for such claim as provided in paragraph (B) or (C), as the case may
be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after the beginning of such
three months period for property held as security at the time of such substitution shall, to the
extent of the fair value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is created in renewal of or
in substitution for or for the purpose of repaying or refunding any pre-existing claim of the
Trustee as such creditor, such claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in such special account
and the proceeds thereof shall be apportioned among the Trustee, the Holders and the holders of
other indenture securities in such manner that the Trustee, the Holders and the holders of other
indenture securities realize, as a result of payments from such special account and payments of
dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law, the same percentage
of their respective claims, figured before crediting to the claim of the Trustee anything on
account of the receipt by it from the Company of the funds and property in such special account and
before crediting to the respective claims of the Trustee and the Holders and the holders of other
indenture securities dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented by their respective
claims from all sources other than from such dividends and from the funds and property so held in
such special account. As used in this paragraph, with respect to any claim, the term dividends
shall include any distribution with respect to such claim, in bankruptcy or receivership or
proceedings for
50
reorganization pursuant to the Federal Bankruptcy Act or applicable State law, whether such
distribution is made in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The court in which such
bankruptcy, receivership or proceedings for reorganization is pending shall have jurisdiction (i)
to apportion among the Trustee, the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in such special
account and proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to give
to the provisions of this paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Holders and the holders of other indenture
securities with respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in such special account
or as security for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to apply the provisions of
this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such three months period
shall be subject to the provisions of this Subsection as though such resignation or removal had not
occurred. If any Trustee has resigned or been removed prior to the beginning of such three months
period, it shall be subject to the provisions of this Subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which would have given rise to the obligation
to account, if such Trustee had continued as Trustee, occurred after the beginning of such three
months period; and
(ii) such receipt of property or reduction of claim occurred within three months after such
resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of this Section a creditor
relationship arising from:
(1) the ownership or acquisition of securities issued under any indenture, or any security or
securities having a maturity of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of competent jurisdiction or by this
Indenture, for the purpose of preserving any property which shall at any time be subject to the
lien of this Indenture
51
or of discharging tax liens or other prior liens or encumbrances thereon, if notice of such
advances and of the circumstances surrounding the making thereof is given to the Holders at the
time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the capacity of trustee under an
indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or depositary, or other
similar capacity;
(4) an indebtedness created as a result of services rendered or premises rented; or an
indebtedness created as a result of goods or securities sold in a cash transaction, as defined in
Subsection (c) of this Section;
(5) the ownership of stock or of other securities of a corporation organized under the provisions
of Section 25(a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor
of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of exchange,
acceptances or obligations which fall within the classification of
self-liquidating paper, as defined in Subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term default means any failure to make payment in full of the principal of or interest
on any of the Debt Securities or upon the other indenture securities when and as such principal or
interest becomes due and payable;
(2) the term other indenture securities means securities upon which the Company is an obligor
outstanding under any other indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of this Section, and (iii) under which
a default exists at the time of the apportionment of the funds and property held in such special
account;
(3) the term cash transaction means any transaction in which full payment for goods or
securities sold is made within seven days after delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or bankers and payable upon demand;
(4) the term self-liquidating paper means any draft, bill of exchange, acceptance or obligation
which is made, drawn, negotiated or incurred by the Company for the purpose
52
of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to, possession of, or a lien upon,
the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security, provided the security is received by the
Trustee simultaneously with the creation of the creditor relationship with the Company arising from
the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or
obligation;
(5) the term Company means any obligor upon the Debt Securities; and
(6) the term Federal Bankruptcy Act means the Bankruptcy Act or Title 11 of the United States
Code.
Section 614.
Appointment of Authenticating Agent
.
At any time when any of the Debt Securities of any series remain Outstanding the Trustee may
appoint an Authenticating Agent or Agents which shall be authorized to act on behalf of the Trustee
to authenticate Debt Securities of one or more series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and Debt 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 Debt Securities by the Trustee or the Trustees
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 shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the District of Columbia or a
corporation or other person permitted to act as Trustee by the Commission, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of not less than
$150,000,000 and subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section, such
53
Authenticating Agent shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this 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 with respect to one or more series of Debt Securities at any
time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be reasonably acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of each series affected as their
names and addresses appear in the Debt Security Register. 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
herein. No successor Authenticating Agent shall be appointed unless eligible under the provisions
of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation
for its services under this Section, and the Trustee shall be entitled to be reimbursed for such
payments, subject to the provisions of Section 607.
If an appointment is made pursuant to this Section, the Debt Securities of each series affected may
have endorsed thereon, in addition to the Trustees certificate of authentication, an alternate
certificate of authentication in the following form:
54
This is one of the Debt Securities of the series designated herein and described in the
within-mentioned Indenture.
|
|
|
|
|
|
|
|
|
Wilmington Trust Company
as Trustee
|
|
|
|
|
|
|
|
|
|
|
|
By
|
|
|
|
|
|
|
|
|
As Authenticating Agent
|
|
|
|
|
|
|
|
|
|
|
|
By
|
|
|
|
|
|
|
|
|
Authorized Signature
|
|
|
ARTICLE SEVEN
Holders Lists and Reports by Trustee and Company
Section 701.
Company to Furnish Trustee Names and Addresses of Holders
.
The Company and all other obligors upon the Debt Securities will furnish or cause to be furnished
to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record Date, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of each series of
Debt Securities as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by
the Company or any other obligor upon the Debt Securities 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;
excluding
from any such list names and addresses received by the Trustee in its capacity as
Debt Security Registrar.
Section 702.
Preservation of Information; Communications to Holders
.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders of each series of Debt Securities contained in the most recent list furnished
to the Trustee as provided in Section 701 and the names and addresses of Holders of each series of
Debt Securities received by the Trustee in its capacity as Debt Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
55
(b) If three or more Holders of any series (herein referred to as applicants) apply in writing
to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a
Debt Security of such series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to communicate with other
Holders of such series or of all series (in which case each applicant need only demonstrate that
such applicant has owned a Debt Security of any series for a period of at least six months
preceding the date of such application) with respect to their rights under this Indenture or under
the Debt Securities and is accompanied by a copy of the form of proxy or other communication which
such applicants propose to transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the time by the Trustee in
accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders of such series or all Debt
Securities, as the case may be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 702(a), and as to the approximate cost of
mailing to such Holders the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such information, the Trustee
shall, upon the written request of such applicants, mail to each Holder of such series or all Debt
Securities, as the case may be, whose name and address appear in the information preserved at the
time by the Trustee in accordance with Section 702(a) a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary
to the best interest of the Holders of such series or all Debt Securities, as the case may be, or
would be in violation of applicable law. Such written statement shall specify the basis of such
opinion. If the Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained have been met and
shall enter an order so declaring, the Trustee
56
shall mail copies of such material to all such Holders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Debt Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of the disclosure of any such information as to the names and addresses
of the Holders in accordance with Section 702(b), 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 702(b).
Section 703.
Reports by Trustee
.
(a) Within 60 days after May 15 of each year commencing with the year after the Debt Securities of
any series are issued, the Trustee shall transmit by mail to all Holders of each series, as their
names and addresses appear in the Debt Security Register, a brief report dated as of such May 15
with respect to (but if no such event has occurred within such period, no report need be
transmitted):
(1) any change to its eligibility under Section 609 and its qualifications under Section 608;
(2) the character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on
the date of such report, and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Debt Securities of any series, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required (but may elect) to report
such advances if such advances so remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Debt Securities Outstanding of any series on the date of such report;
(3) the amount, interest rate and maturity date of all other indebtedness owing by the Company (or
by any other obligor on the Debt Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as collateral security therefor,
except an indebtedness based upon a creditor relationship arising in any manner described in
Section 613(b)(2),(3),(4) or (6);
57
(4) any change in the property and funds, if any, physically in the possession of the Trustee as
such on the date of such report;
(5) any additional issue of Debt Securities which the Trustee has not previously reported; and
(6) any action taken by the Trustee in the performance of its duties hereunder which it has not
previously reported and which in its opinion materially affects the Debt Securities, except action
in respect of a default, notice of which has been or is to be withheld by the Trustee in accordance
with Section 602.
(b) The Trustee shall transmit by mail to all Holders of each series, as their names and addresses
appear in the Debt Security Register, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) since the date of the last report transmitted pursuant to
Subsection (a) of this section (or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Debt Securities of such series, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant to this Subsection, except that
the Trustee shall not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of the Debt Securities
Outstanding of such series at such time, such report to be transmitted within 90 days after such
time.
(c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which the Debt Securities of any series are listed, with the
Commission and with the Company. The Company will notify the Trustee when the Debt Securities of
any series are listed on any stock exchange.
Section 704.
Reports by Company
.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is required to file 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 Securities Exchange Act of 1934; or,
58
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 Securities
Exchange Act of 1934 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;
(3) transmit by mail to all Holders, as their names and addresses appear in the Debt Security
Register, within 30 days after the filing thereof with the Trustee, 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; and
(4) furnish to the Trustee, not less often than annually, a certificate of the principal
executive officer, principal financial officer or principal accounting officer as to his or her
knowledge of the Companys compliance with all conditions and covenants under the Indenture
(which
compliance shall be determined without regard to any period of grace or requirement of notice).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801.
Company May Consolidate, Etc., Only on Certain Terms
.
The Company shall not consolidate with or merge into any other corporation or convey or transfer or
lease its properties and assets substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and assets of the Company
substantially as an
59
entirety 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
supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and premium, if any) and interest on all the Debt
Securities and the performance of every covenant and obligation of this Indenture on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such 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) the Company has delivered to the Trustee an Officers Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
Section 802.
Successor Corporation Substituted
.
Upon any consolidation or merger or any conveyance, transfer or lease of the properties and assets
of the Company substantially as an entirety in accordance with Section 801, the successor
corporation formed by such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor corporation shall be relieved of all obligations and covenants under this
Indenture and the Debt Securities.
ARTICLE NINE
Supplemental Indentures
Section 901.
Supplemental Indentures Without Consent of Holders
.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
60
(1) to evidence the succession of another corporation to the Company and the assumption by any
such successor of the covenants of the Company herein and in the Debt Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders, or to surrender any
right or power herein conferred upon the Company; or
(3) to make provision with respect to the conversion rights of Holders pursuant to the
requirements of Section 1306; or
(4) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action shall not adversely affect the interests of the Holders in any
material respect; or
(5) to establish the form or terms of Debt Securities of any series as permitted by Sections 201
and 301; or
(6) to provide for alternative methods or forms for evidencing and recording the ownership of Debt
Securities and matters related thereto; or
(7) to evidence and provide for the acceptance of appointment by another corporation as a
successor Trustee hereunder with respect to one or more series of Debt Securities 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 section 611.
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
Debt Securities of all series affected by such supplemental indenture (treated as one class), by
Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by 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 modifying in any manner the rights of the Holders of such series
under this Indenture;
provided, however,
that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Debt Security affected thereby,
61
(1) change the Stated Maturity of the principal of, or any installment of interest on, any Debt
Security, or reduce the principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or change the place of payment where, or the coin or currency
in which, any Debt Security or any premium or the interest thereon 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 adversely affect the right to
convert any Debt Security as provided in Article Thirteen or modify the provisions of this
Indenture with respect to the subordination of the Debt Securities in a manner adverse to the
Holders, or
(2) reduce the percentage in principal amount of the outstanding Debt Securities, the consent of
whose Holders is required for any such supplemental indenture, or the consent of whose Holders is
required for such waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section 1007, 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 Debt Security affected
thereby.
It shall not be necessary for any Act of Holders 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
.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustees 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
62
therewith, and such supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Debt Securities of each series affected theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 905.
Conformity with Trust Indenture Act
.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
Section 906.
Reference in Debt Securities to Supplemental Indentures
.
Debt Securities 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 Debt Securities of any series so modified, as to conform, in the
opinion of the Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities of such series.
ARTICLE TEN
Covenants
Section 1001.
Payment of Principal, Premium and Interest
.
The Company will duly and punctually pay the principal of (and premium, if any) and interest on the
Debt Securities of each series in accordance with the terms of the Debt Securities of such series
and this Indenture.
Section 1002.
Maintenance of Office or Agency
.
The Company will maintain in Wilmington, Delaware, an office or agency where Debt Securities may be
presented or surrendered for payment, where Debt Securities may be surrendered for registration of
transfer or exchange, where Debt Securities may be surrendered for conversion and where notices and
demands to or upon the Company in respect of the Debt Securities and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee, and the
63
Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices or agencies (in or
outside Wilmington, Delaware) where the Debt Securities 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 Wilmington, Delaware for such purposes. The Company will 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.
Section 1003.
Money for Debt Security Payments To Be Held in Trust
.
If the Company shall at any time act as its own Paying Agent with respect to Debt Securities of any
series, it will, on or before each due date of the principal of (and premium, if any) or interest
on any of the Debt Securities of such series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect to Debt Securities of any
series, it will, prior to each due date of the principal of (and premium, if any) or interest on
any Debt Securities of such series deposit with a Paying Agent of such series a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action of failure
so to act.
The Company will cause each Paying Agent other than the Trustee with respect to Debt Securities of
any series 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 will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest
on Debt 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 herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the Debt
Securities of
64
such series) in the making of any payment of principal (and premium, if any) or interest; 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.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this
Indenture with respect to one or more or all series of Debt Securities hereunder or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust for any such series by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or such Paying Agent;
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 money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (and premium, if any) or interest on any Debt Security of any
series and remaining unclaimed for six years after such principal (and premium, if any) or interest
has 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 Debt Security of such series
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 at the
expense of the Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation in New York, New
York, notice that such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 1004.
Statement by Officers as to Default
.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, an Officers Certificate, stating whether or not
to the best knowledge of the signers thereof the Company is in default in the performance and
observance of any of the terms, provisions and conditions of Sections 1001 to 1003, inclusive, and
if the Company shall be in default, specifying all such defaults and the nature and status thereof
of which they may have knowledge.
65
|
|
|
Section 1005.
|
|
Limitation on Liens on Stock of Principal Insurance Subsidiaries.
|
The Company will not, and will not permit any Principal Insurance Subsidiary to, issue, assume or
guarantee any debt for money borrowed (hereinafter in this Section referred to as Debt) secured
by a mortgage, security interest, pledge, lien or other encumbrance upon any shares of stock of any
Principal Insurance Subsidiary (whether such shares of stock are now owned or hereafter acquired)
without in any such case effectively providing concurrently with the issuance, assumption or
guarantee of any such Debt that the Debt Securities (together with, if the Company shall so
determine in an Officers Certificate, any other indebtedness of or guarantee by the Company
ranking equally with the Debt Securities and then existing or thereafter created) shall be secured
equally and ratably with such Debt.
|
|
|
Section 1006.
|
|
Limitations on Issue or Disposition of Stock of Principal Insurance
Subsidiaries.
|
The Company will not, and will not permit any Principal Insurance Subsidiary to, issue, sell,
assign, transfer or otherwise dispose of, directly or indirectly, any of the capital stock (other
than non-voting, non-convertible preferred stock) of any Principal Insurance Subsidiary (except to
the Company or to one or more wholly-owned subsidiaries or for the purpose of qualifying
directors); provided, however, that this covenant shall not apply if
(1) the entire capital stock of a Principal Insurance Subsidiary is disposed of in a single
transaction, or in a series of related transactions, for a consideration consisting of cash or
other property which is at least equal to the fair value of such capital stock, as determined by
the Board of Directors; or
(2) the issuance, sale, assignment, transfer or other disposition is required to comply with the
order of a court or regulatory authority of competent jurisdiction, other than an order issued at
the request of the Company or of one of its Principal Insurance Subsidiaries; or
(3) after giving effect to the issuance, sale, assignment, transfer or other disposition, the
Company and its Principal Insurance Subsidiaries would own directly or indirectly at least 80% of
the issued and outstanding capital stock of such Principal Insurance Subsidiary and such issuance,
sale, assignment, transfer or other disposition is made for a consideration consisting of cash or
other property which is at least equal to the fair value of such capital stock, as determined by
the Board of Directors.
66
Section 1007.
Waiver of Certain Covenants
.
The Company may omit in any particular instance to comply with any covenant or condition set forth
in Sections 1005 or 1006, if before or after the time for such compliance the Holders of at least a
majority in principal amount of all Outstanding Debt Securities (treated as one class) shall, by
Act of such Holders, either waive such compliance in such instance or generally waive compliance
with such covenant 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 covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Debt Securities
Section 1101.
Applicability of Article
.
Debt Securities of any series which are redeemable before their stated maturity at the election of
the Company, other than through operation of the sinking fund provided for in Article Twelve, shall
be redeemable in accordance with their terms and (except as otherwise specified as contemplated by
Section 301 for Debt Securities of any series) in accordance with this Article.
Section 1102.
Election to Redeem; Notice to Trustee
.
The election of the Company to redeem any Debt Securities shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company of less than all the Debt Securities of
any series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company
and in the case of Redemption at the election of the Company of all Outstanding Debt Securities of
such series, at least 40 days prior to the Redemption Date fixed by the Company (unless in each
case a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Debt Securities of such series to be redeemed.
Section 1103.
Selection by Trustee of Debt Securities to Be Redeemed
.
If less than all the Debt Securities of any series are to be redeemed, the particular Debt
Securities of such series to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Debt Securities not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions (equal to
67
$1,000 or any integral multiple thereof) of the principal amount of Debt Securities of a
denomination larger than $1,000.
If any Debt Security selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Debt Security so selected, the converted
portion of such Debt Security shall be deemed (so far as may be) to be the portion selected for
redemption. Debt Securities which have been converted during a selection of Debt Securities to be
redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each Debt Security Registrar in writing of the
Debt Securities of such series selected for redemption and, in the case of any Debt Securities of
such series 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 Debt Securities of any series shall relate, in the case of any Debt Securities
redeemed or to be redeemed only in part, to the portion of the principal amount of such Debt
Security which has been or is to be redeemed.
Section 1104.
Notice of Redemption
.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the Redemption Date, to each Holder of Debt Securities to be
redeemed, at his address appearing in the Debt Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Debt Securities of such series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts) of the particular
Debt Securities of such series to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such
Debt Security to be redeemed and that interest thereon will cease to accrue on and after said date,
(5) the conversion price, the date on which the right to convert the principal of the Debt
Securities to be
68
redeemed will terminate and the place or places where such Debt Securities may be surrendered for
conversion,
(6) the place or places where such Debt Securities are to be surrendered for payment of the
Redemption Price, and
(7) that the redemption is for the sinking fund, if such is the case.
Notice of redemption of Debt Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request, by the Trustee in the name and at the expense of
the Company.
Section 1105.
Deposit of Redemption Price
.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the Debt Securities of
any series which are to be redeemed on that date other than any Debt Securities of such series
called for redemption on that date which have been converted prior to the date of such deposit.
If any Debt Security called for redemption is converted, any money deposited with the Trustee or
with any Paying Agent or so segregated and held in trust for the redemption of such Debt Security
shall (subject to any right of the Holder of such Debt Security or any Predecessor Debt Security to
receive interest as provided in the last paragraph of Section 307) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such trust.
Section 1106.
Debt Securities Payable on Redemption Date
.
Notice of redemption having been given as aforesaid, the Debt Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Debt Securities shall cease to bear interest. Upon surrender of any such
Debt Security for redemption in accordance with said notice, such Debt Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the Redemption Date;
provided, however,
that installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Debt Securities, or one or more
Predecessor Debt Securities, registered as such at the close of
69
business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Debt Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate borne by the Debt Security.
Section 1107.
Debt Securities Redeemed in Part
.
Any Debt Security which is to be redeemed only in part shall be surrendered at an office or agency
of the Company designated for that purpose pursuant to Section 1002 (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 Debt Security without service charge, a new Debt Security or Debt Securities, 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 Debt Security so surrendered.
ARTICLE TWELVE
Sinking Fund
Section 1201.
Applicability of Article
.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Debt
Securities of a series (except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series).
The minimum amount of any sinking fund payment provided for by the terms of Debt Securities of any
series is herein referred to as a mandatory sinking fund payment, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an optional sinking fund payment. If provided for by the terms of Debt Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as provided in Section
1202. Each sinking fund payment shall be applied to the redemption of Debt Securities of any series
as provided for by the terms of the Debt Securities of such series.
Section 1202.
Satisfaction of Sinking Fund Payments with Debt Securities
The Company (1) may deliver Outstanding Debt Securities of a series (other than Debt Securities
previously called for
70
redemption) and (2) may apply as a credit Debt Securities of a series which have been redeemed at
the election of the Company pursuant to the terms of such Debt Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of such Debt
Securities or converted into Common Stock pursuant to the terms of such Debt Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect to the Debt
Securities of such series required to be made pursuant to the terms of such Debt Securities, as
provided for by the terms of such series
provided
that such Debt Securities have not been
previously so credited or applied to reduce the amount of any sinking fund payment pursuant to the
second succeeding sentence. Each such Debt Security shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Debt Security for redemption
through operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. The amount of any sinking fund payment in any year with respect to the Debt
Securities of any series shall automatically be reduced by the principal amount of any Debt
Securities of such series called for redemption through the operation of the sinking fund and
converted into Common Stock pursuant to the terms of such Debt Securities on or before the date
fixed for redemption.
Section 1203.
Redemption of Debt Securities for Sinking Fund
.
Not less than 60 days prior to each sinking fund payment date for any series of Debt Securities,
the Company will deliver to the Trustee an Officers Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any of
that series, which is to be satisfied by delivering and crediting Debt Securities pursuant to
Section 1202 and will also deliver to the Trustee any Debt Securities to be so delivered. Not less
than 30 days before each sinking fund payment date, the Trustee shall select the Debt 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
Debt Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
71
ARTICLE THIRTEEN
Convertible Debt Securities
Section 1301.
Applicability of Article
.
Debt Securities of any series which are convertible into Common Stock at the option of the Holder
shall be convertible in accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Convertible Debt Securities of any series) in accordance with this
Article. Each reference in this Article to a Convertible Debt Security or the Convertible Debt
Securities refers to the Debt Securities of the particular series that are convertible into Common
Stock. If more than one series of Convertible Debt Securities with conversion privileges are
outstanding at any time, the provisions of this Article shall be applied separately to each such
series.
A Holder of a Convertible Debt Security of any series may convert it into Common Stock, at any time
during the period specified on the Convertible Debt Securities of that series, at the conversion
price or conversion rate in effect on the conversion date, except that, with respect to any
Convertible Debt Security (or portion thereof) called for redemption, such right shall terminate at
the close of business on the Redemption Date (or such other day as may be specified as contemplated
by Section 301 for Convertible Debt Securities of such series), unless the Company shall default in
payment of the amount due upon redemption thereof.
The initial conversion price or conversion rate in respect of a series of Convertible Debt
Securities shall be as specified on the Convertible Debt Securities of that series. The conversion
price or conversion rate will be subject to adjustment on the terms set forth in Section 13.04 or
such other or different terms, if any, as may be specified as contemplated by Section 301 for
Convertible Debt Securities of such series.
A Holder may convert any Convertible Debt Security in full and may convert a portion of a
Convertible Debt Security if the portion to be converted and the remaining portion of such
Convertible Debt Security are in denominations of $1,000. Provisions of this Indenture that apply
to conversion of all of a Convertible Debt Security also apply to conversion of a portion of it.
Section 1302.
Manner of Exercise of Conversion Privilege
.
In order to exercise the conversion privilege, the Holder of any Convertible Debt Security of any
series to be converted shall surrender such Convertible Debt Security during normal business hours
to the office or agency to be maintained by the Company in
72
accordance with Section 1002, accompanied by written notice to the Company at said office or agency
that the Holder elects to convert such Convertible Debt Security or, if less than the entire
principal amount of the Convertible Debt Security is to be converted, the portion thereof to be
converted, and by transfer tax stamps or funds therefor, if required pursuant to Section 1308.
Such notice shall also state the name or names (with address and tax identification number) in
which the certificate or certificates for shares of Common Stock issuable upon such conversion
shall be issued. Convertible Debt Securities surrendered for conversion shall be accompanied by
proper assignments thereof to the Company or in blank for transfer. Convertible Debt Securities
surrendered for conversion during the period from the close of business on any Regular Record Date
next preceding any Interest Payment Date to the opening of business on such Interest Payment Date
shall (except in the case of Convertible Debt Securities or portions thereof which have been called
for redemption on a Redemption Date during such period) be accompanied by payment in New York
Clearing House funds or other funds acceptable to the Company of an amount equal to the amount of
interest payable on such Interest Payment Date on the principal amount of Convertible Debt
Securities being surrendered for conversion. As promptly as practicable after the surrender for
conversion of such Convertible Debt Security as aforesaid and the payment in cash of any amount
required by the provisions of Section 1308, the Company shall deliver or cause to be delivered at
said office or agency to or upon the written order of such Holder certificates representing the
number of full shares of Common Stock issuable upon the conversion of such Convertible Debt
Security (or specified portion thereof), issued in such name or names as such Holder may direct.
Such conversion shall be deemed to have been effected immediately prior to the close of business on
the date such Convertible Debt Security shall have been surrendered as aforesaid, and all rights of
the Holder of such Convertible Debt Security as such Holder shall cease at such time and the person
or persons in whose name or names the certificates for shares of Common Stock are to be issued
shall be treated for all purposes as having become the holder or holders of record of the shares
represented thereby at such time and such conversion shall be at the conversion rate with respect
to the Convertible Debt Securities of such series in effect at such time;
provided
that any
such surrender and payment on any date when the stock transfer books of the Company shall be closed
shall constitute the person or persons in whose name or names the certificates for such shares of
Common Stock are to be issued as the record holder or holders thereof for all purposes immediately
prior to the close of business on the next succeeding day on which such stock transfer books are
opened and such conversion shall be at the conversion rate with respect to the Convertible Debt
Securities of such series in effect at such time on such succeeding day.
73
If the last day for the exercise of the conversion right shall be other than a business day, then
such conversion right may be exercised on the next succeeding business day.
Except as provided in the fourth sentence of the first paragraph of this Section and subject to the
fourth paragraph of Section 307, no adjustments or payments in respect of any interest accrued on
the Convertible Debt Securities surrendered for conversion or any dividend on the Common Stock
issued upon conversion shall be made upon the conversion of any Convertible Debt Security;
provided, however,
that if the Convertible Debt Securities of any series shall be converted
subsequent to the Regular Record Date preceding an Interest Payment Date but on or prior to such
Regular Payment Date, the registered Holder of such Convertible Debt Security at the close of
business on such Record Date shall be entitled to receive the interest payable on such Convertible
Debt Security on such Interest Payment Date notwithstanding the conversion thereof or the Companys
default in payment of the interest due on such Interest Payment Date.
In case any Convertible Debt Security of any series is converted in part only, upon such conversion
the Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Company, a new Convertible Debt Security or Convertible Debt Securities of such
series of authorized denominations in principal amount equal to the unconverted portion of such
Convertible Debt Security.
Section 1303.
Cash Adjustment Upon Conversion
.
No fractional shares of stock shall be issued upon conversions of Convertible Debt Securities. If
more than one Convertible Debt Security of any series shall be surrendered for conversion at one
time by the same Holder, the number of full shares that shall be issuable upon conversion thereof
shall be computed on the basis of the aggregate principal amount of the Convertible Debt Securities
of such series (or specified portions thereof to the extent permitted hereby) so surrendered. If
any fractional interest in a share of Common Stock would, except for the provisions of this Section
1303, be deliverable upon conversion of any Convertible Debt Security or Convertible Debt
Securities or specified portions thereof, the Company shall, in lieu of delivering the fractional
share therefor, adjust such fractional interest by payment to the Holder of such surrendered
Convertible Debt Security or Convertible Debt Securities of an amount in cash equal (computed to
the nearest cent) to the current market value of such fractional interest, computed on the basis of
the closing price of the Common Stock (determined as provided in Paragraph D of Section 1304) on
the business day which next precedes the day of conversion.
74
Section 1304.
Adjustment of Conversion Rate
.
The conversion rate in effect at any time shall be subject to adjustment as follows:
A. In case the Company shall (i) pay a dividend or make
a distribution in shares of its capital stock (whether shares of Common Stock or of capital stock of any other
class), (ii) subdivide its outstanding shares of Common
Stock, (iii) combine its outstanding shares of Common Stock
into a smaller number of shares or (iv) issue by
reclassification of its shares of Common Stock any shares of
capital stock of the Company, the conversion privilege and
the conversion rate in effect immediately prior to such
action shall be adjusted so that the Holder of any
Convertible Debt Security thereafter surrendered for
conversion shall be entitled to receive the number of shares
of capital stock of the Company which he would have owned
immediately following such action had such Convertible Debt
Security been converted immediately prior thereto. An
adjustment made pursuant to this Paragraph A shall become
effective retroactively immediately after the record date in
the case of a dividend or distribution and shall become
effective immediately after the effective date in the case
of a subdivision, combination or reclassification. If, as a
result of an adjustment made pursuant to this Paragraph A,
the holder of any Convertible Debt Security thereafter
surrendered for conversion shall become entitled to receive
shares of two or more classes of capital stock of the
Company, the Board of Directors (whose determination shall
be conclusive) shall determine the allocation of the
adjusted conversion rate between or among shares of such
classes of capital stock.
B. In case the Company shall issue rights or warrants
to all holders of its Common Stock entitling them (for a
period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase shares of
Common Stock at a price per share less than the current
market price per share (as determined pursuant to Paragraph
D below) on the record date mentioned below, the conversion
rate shall be adjusted so that the same shall equal the rate
determined by multiplying the conversion rate in effect
immediately prior to the date of issuance of such rights or
warrants by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of
additional shares of Common Stock offered for subscription
or purchase, and of which the denominator shall be the
number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of shares which the aggregate offering price of the total
75
number of shares so offered would purchase at such current market price. Such adjustment shall
become effective retroactively immediately after the record date for the determination of
stockholders entitled to receive such rights or warrants.
C. In case the Company shall distribute to all holders
of its Common Stock evidences of its indebtedness or assets
(excluding any cash dividend paid from retained earnings of
the Company) or rights or warrants to subscribe to
securities of the Company (excluding those referred to in
Paragraph B above), then in each such case the conversion
rate shall be adjusted so that the same shall equal the rate
determined by multiplying the conversion rate in effect
immediately prior to the date of such distribution by a
fraction of which the numerator shall be the current market
price per share (determined as provided in Paragraph D
below) of the Common Stock on the record date mentioned
below, and of which the denominator shall be such current
market price per share of Common Stock less the then fair
market value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive) of the
portion of the assets or evidences of indebtedness so
distributed or of such subscription rights or warrants
applicable to one share of Common Stock. Such adjustment
shall become effective retroactively immediately after the
record date for the determination of stockholders entitled
to receive such distribution.
D. For the purpose of any computation under Paragraphs
B and C above, the current market price per share of Common
Stock on any date shall be deemed to be the average of the
daily closing prices for 30 consecutive business days
commencing 45 business days before the day in question. The
closing price for each day shall be the last reported sales
price regular way on the New York Stock Exchange, or, if not
reported for such Exchange, on the Composite Tape, or, in
case no such reported sale takes place on such day, the
average of the reported closing bid and asked quotations on
the New York Stock Exchange, or, if the Common Stock is not
listed on such Exchange or no such quotations are available,
the average of the high bid and low asked quotations in the
over-the-counter market as reported by National Quotation
Bureau, Incorporated, or similar organization, or, if no
such quotations are available, the fair market price as
determined by the Company (whose determination shall be
conclusive).
E. In any case in which this Section 1304 shall require
that an adjustment be made retroactively immediately
following a record date, the Company may elect to defer (but
only until five business days following the mailing by the
76
Company of the certificate of independent public accountants described in Section 1305 below)
issuing to the holder of any share converted after such record date (i) the shares of Common Stock
and other capital stock of the Company issuable upon such conversion over and above (ii) the shares
of Common Stock and other capital stock of the Company issuable upon such conversion only on the
basis of the conversion rate prior to adjustment.
F. In the case of either (a) any consolidation or
merger to which the Company is a party, other than a
consolidation or a merger in which consolidation or merger
the Company is a continuing corporation and which does not
result in any reclassification of, or change (other than a
change in par value or from par value to no par value or
from no par value to par value, or as a result of a
subdivision or combination) in, outstanding shares of the
Common Stock, or (b) any sale or conveyance to another
corporation of the property of the Company as an entirety or
substantially as an entirety; then the Holder of each
Outstanding Convertible Debt Security shall have the right
to convert such Convertible Debt Security into the kind and
amount of shares of stock and other securities and property
receivable upon such consolidation, merger, sale or
conveyance by a holder of the number of shares of Common
Stock issuable upon conversion of such Convertible Debt
Security immediately prior to such consolidation, merger,
sale or conveyance, subject to adjustments which shall be as
nearly equivalent as may be practicable to the adjustments
provided for in this Section 1304. The provisions of this
Paragraph F shall similarly apply to successive
consolidations, mergers, sales or conveyances.
G. No adjustment in the conversion rate shall be
required unless such adjustment would require an increase or
decrease of at least 1% in such rate;
provided, however,
that any adjustments which by reason of this Paragraph G are
not required to be made shall be carried forward and taken
into account in any subsequent adjustment; and,
provided, further,
that adjustment shall be required and made in
accordance with the provisions of this Section 1304 (other
than this Paragraph G) not later than such time as may be
required in order to preserve the tax-free nature of a
distribution to the holders of shares of Common Stock. All
calculations under this Section 1304 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as
the case may be. Anything in this Section 1304 to the
contrary notwithstanding, the Company shall be entitled to
make such reductions in the conversion rate in addition to
those required by this Section 1304 as it in its discretion
shall determine to be advisable in order that any stock
dividends, subdivision of shares, distribution of rights to
77
purchase stock or securities, or distribution of securities convertible into or
exchangeable for stock hereafter made by the Company to its stockholders shall not be
taxable.
H. The term Common Stock for the purposes of this Article Thirteen shall mean the
Companys Common Stock, par value $1.00 per share, as the same existed on the date hereof or
any other class of stock resulting from successive changes or reclassifications of such
Common Stock consisting solely of changes in par value, or from par value to no par value,
or from no par value to par value. In the event that at any time as a result of an
adjustment made pursuant to Paragraph A above, the Holder of any Convertible Debt Security
of any series thereafter surrendered for conversion shall become entitled to receive any shares of the Company other than shares of its Common Stock, thereafter the conversion rate
of such other shares so receivable upon conversion of any Convertible Debt Security of such
series shall be subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Common Stock contained in
Paragraphs A through G above, and the provisions of Sections 1301 through 1303 and Sections
1305 through 1309 with respect to the Common Stock shall apply on like or similar terms to
any such other shares.
I. Before taking any action which would cause an adjustment reducing the conversion
rate below the then par value of the Common Stock, the Company will take any corporate
action which may, in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue fully paid and non-assessable shares of Common Stock at the
conversion rate as so adjusted.
Section 1305.
Company to Give Notice of Adjustment
.
Whenever the conversion rate is adjusted as herein provided:
(a) the Company shall promptly file with the Trustee a
certificate of a firm of independent public accountants
selected by the Board of Directors (who may be the regular
accountants employed by the Company) setting forth the
conversion rate after such adjustment and setting forth a
brief statement of the facts requiring such adjustment,
which certificate shall be conclusive evidence of the
correctness of such adjustment, and such certificate shall
forthwith be filed at the office or agency maintained for
the purpose of conversion of Convertible Debt Securities
pursuant to Section 1002; and
(b) a notice stating that the conversion rate has been adjusted and setting forth the adjusted conversion rate
78
shall forthwith be required, and as soon as practicable after it is required, such notice
shall be mailed by the Company to the Holders of the Convertible Debt Securities at their
last address as they shall appear upon the Debt Security Register provided for in Section
305;
provided, however,
that if within ten days after the mailing of
such a notice, an additional notice is required, such additional notice shall be deemed to
be required pursuant to this clause (b) as of the opening of business on the tenth day after
such mailing and shall set forth the conversion rate as adjusted at such opening of
business, and upon the mailing of such additional notice no other notice need be given of
any adjustment in the conversion rate occurring at or prior to such opening of business and
after the time that the next preceding notice given by mailing became required.
Section 1306.
Company to Give Notice of Certain Events
.
In case:
(i) the Company shall take any action which would require an adjustment in the
conversion rate pursuant to Section 1304; or
(ii) the Company shall authorize the granting to the holders of its Common Stock of
rights or warrants to subscribe for or purchase any shares of stock of any class or of any
other rights and notice thereof shall be given to holders of Common Stock; or
(iii)
there shall be any capital reorganization or reclassification of the Common Stock
(other than a subdivision or combination of the outstanding Common Stock and other than a
change in par value or from par value to no par value or from no par value to par value of
the Common Stock), or any consolidation or merger to which the Company is a party and for which
approval of any stockholders of the Company is required, or any sale or transfer of all or
substantially all of the assets of the Company; or
(iv) there shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Company,
then the Company shall cause to be filed at the office or agency maintained for the purpose
of conversion of Convertible Debt Securities pursuant to Section 1002, and shall cause to be
mailed, first class postage prepaid, to the Holders of Convertible Debt Securities at their
last addresses as they shall appear upon the Debt Security Register provided for in Section
305, at least 10 days prior to the applicable date hereinafter specified, a notice setting
forth (x) the date on which a record is to be taken
79
for the purpose of any distribution or grant to holders of Common Stock, or, if a record is
not to be taken, the date as of which the holders of Common Stock of record to be entitled
to such distribution or grant are to be determined or (y) the date on which such
reorganization, reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or
winding up. Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clauses (i) through (iv) of this
Section 1306. If at the time the Trustee shall not be the conversion agent, a copy of such
notice shall also forthwith be filed by the Company with the Trustee.
Section 1307.
Reservation of Common Stock
.
The Company covenants that it will at all times reserve and keep available, solely for the
purpose of issue upon conversion of Convertible Debt Securities, such number of shares of Common
Stock as shall be issuable upon the conversion of all Outstanding Convertible Debt Securities;
provided that nothing contained herein shall be construed to preclude the Company from satisfying
its obligations in respect of the conversion of the Convertible Debt Securities by delivery of
purchased shares of Common Stock which are held in the treasury of the Company. For the purpose of
this Section 1307, the full number of shares of Common Stock issuable upon the conversion of all
Outstanding Convertible Debt Securities shall be computed as if at the time of computation of such
number of shares of Common Stock all Outstanding Convertible Debt Securities were held by a single
Holder. The Company covenants that if any shares of Common Stock required to be reserved for
issuance upon conversion of Convertible Debt Securities hereunder require registration with or
approval of any governmental authority under any Federal or state law before such shares may be
issued upon conversions, the Company will cause such shares to be duly registered or approved, as
the case may be. The Company will endeavor to list the shares of Common Stock required to be
delivered upon conversion of Convertible Debt Securities prior to such delivery upon each national
securities exchange upon which the outstanding Common Stock is listed at the time of such delivery.
Section 1308.
Taxes on Conversions
.
The issuance of certificates for shares of Common Stock on conversion of Convertible. Debt
Securities pursuant hereto shall
80
be made without charge for any stamp or other similar tax in respect of such issuance. However, if
any such certificate is to be issued in a name other than that of the Holder of the Convertible
Debt Security or Convertible Debt Securities to be converted, the person or persons requesting the
issuance thereof shall pay to the Company the amount of any tax which may be payable in respect of
any transfer involved in such issuance or shall establish to the satisfaction of the Company that
such tax has been paid.
Section 1309.
Absence of Preemptive Rights.
The Company covenants that all authorized but unissued shares of Common Stock which may at any
time be reserved pursuant to Section 1307 for issuance upon conversions of Convertible Debt
Securities will be free from preemptive rights and duly and validly authorized for issuance upon
such conversions, and that all shares of Common Stock which may at any time be issued upon
conversions of Convertible Debt Securities in accordance with the terms of this Indenture will upon
such issuance be free from preemptive rights, duly and validly authorized and issued, fully paid
and non-assessable.
Simultaneously with the delivery of Convertible Debt Securities of any series to the Trustee
for authentication pursuant to Section 303 the Company shall deliver to the Trustee an Opinion of
Counsel to the effect that the shares of Common Stock which have initially been reserved pursuant
to Section 1307 for issuance upon conversions of Convertible Debt Securities of such series are
free from preemptive rights and duly and validly authorized for issuance upon such conversions; and
within ten business days after the Company shall thereafter, at any time or from time to time, take
action to reserve additional or other shares of Common Stock pursuant to Section 1307 for issuance
upon conversions of Convertible Debt Securities of such series, the Company shall deliver to the
Trustee an Opinion of Counsel to the effect that such additional or other shares of Common Stock
are free from preemptive rights and have been duly and validly authorized for issuance upon such
conversions and will upon such issue be fully paid and non-assessable.
Section 1310.
Debt Securities Converted.
All Convertible Debt Securities delivered for conversion shall be delivered to the Trustee to
be cancelled by or at the direction of the Trustee, which shall dispose of the same as provided in
Section 309.
Section 1311.
Effect of Consolidation, Merger or Sale
.
In case of any consolidation or merger of the Company with or into any other corporation
(other than a consolidation or
81
merger in which the Company is the continuing corporation), or in case of any sale or transfer of
all or substantially all the assets of the Company, the corporation formed by such consolidation or
the corporation into which the Company shall have been merged or the corporation which shall have
acquired such assets, as the case may be, shall execute and deliver to the Trustee a supplemental
indenture providing that the holder of each Convertible Debt Security then outstanding shall have
the right thereafter to convert such Convertible Debt Security as provided in Paragraph F of
Section 1304. Such supplemental indenture shall provide for adjustments which, for events
subsequent to the effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article Thirteen. The provisions of
this Section 1311 shall similarly apply to successive consolidations, mergers, sales or transfers.
Section 1312.
Return of Funds.
Notwithstanding anything else in this Article Thirteen, any funds which at anytime shall have
been deposited by the Company or on its behalf with any paying agent for the purpose of paying
interest on or the redemption price of any of the Convertible Debt Securities and which shall not
be required for such purposes because of the conversion of such Convertible Debt Securities (or a
specified portion thereof), upon delivery to the paying agent of evidence satisfactory to it of
such conversion, after such conversion shall be repaid to the Company by the paying agent.
ARTICLE FOURTEEN
Subordinated Debt Securities
Section 1401.
Applicability of Article.
Debt Securities of any series, the indebtedness evidenced thereby and the payment of the
principal thereof, premium, if any, sinking fund requirements therefor, if any, and interest
thereon which are subordinate and subject in right of payment, to the prior payment in full of all
Senior Indebtedness shall be subordinate in accordance with the terms of the Debt Securities of
such series and (except as otherwise specified as contemplated by Section 301 for Debt Securities
of any series) in accordance with this Article (such subordinated Debt Securities in this Article
Fourteen referred to as Subordinated Debt Securities). The Company covenants and agrees, and each
Holder of Subordinated Debt Securities of such series, by his acceptance thereof, likewise
covenants and agrees, that the indebtedness evidenced by the Subordinated Debt Securities of such
series and the payment of the principal thereof, premium, if any, sinking fund requirements
therefor, if any, and interest thereon shall be
82
subordinate and subject in right of payment, to the prior payment in full of all Senior
Indebtedness in accordance with the terms of the Subordinated Debt Securities of such series and
(except as otherwise specified as contemplated by Section 301 for Subordinated Debt Securities of
any series) in accordance with this Article. Each reference in this Article to a Subordinated
Debt Security or the Subordinated Debt Securities refers to the Subordinated Debt Securities of
the particular series that is subordinate to the Senior Indebtedness. If more than one series of
Subordinated Debt Securities which are subordinate to the Senior Indebtedness are outstanding at
any time, the provisions of this Article shall be applied separately to each such series.
Section 1402.
No Payment on Subordinated Debt Securities in Event of Default on Senior
Indebtedness
.
The Company shall not make any payment on account of the principal of, or sinking fund for, if
any, or premium, if any, or interest on the Subordinated Debt Securities if, at the time thereof or
immediately after giving effect thereto, there exists (and has not been waived) any default in the
payment of principal of, premium, if any, or interest on any Senior Indebtedness or any event of
default with respect to any Senior Indebtedness as defined therein (after giving effect to any
grace period provided for therein) or in any agreement pursuant to which any Senior Indebtedness is
issued and the default is the subject of a judicial proceeding or the Company receives notice of
the default from the Trustee or any holder of Senior Indebtedness or any trustee therefor;
provided, however,
that the foregoing shall not prevent a sinking fund payment in respect
of the Subordinated Debt Securities of any series made by the taking of a credit for Subordinated
Debt Securities of such series properly acquired prior to the happening of such default or event of
default or for Subordinated Debt Securities of such series converted into Common Stock pursuant to
Article Thirteen; and
provided, further,
that in the event the Subordinated Debt Securities
of any series have been declared due and payable pursuant to Section 502, the provisions of the
next succeeding paragraph of this Section 1402 shall be applicable.
In the event that any Event of Default as defined in Section 501 shall occur (under such
circumstances that the provisions of Section 1403 are not applicable) and as a result the
Subordinated Debt Securities of any series then outstanding are declared due and payable pursuant
to Section 502, and such declaration shall not have been rescinded or annulled, the Company shall
promptly cause notice thereof to be mailed to all holders of Senior Indebtedness whose names and
addresses are known to the Company (and not later than said mailing date shall also cause notice
thereof to be published at least once in a newspaper printed in the English language, customarily
published at least once on each full business day, and of general circulation in New York, New
83
York), and the Company shall not make any payment on account of the principal of, or sinking fund
(except by the taking of a credit for Subordinated Debt Securities properly acquired prior to such
Event of Default or Subordinated Debt Securities converted into Common Stock pursuant to Article
Thirteen) for, or premium, if any, or interest on any Subordinated Debt Securities, unless at least
120 days shall have elapsed after said declaration and unless all principal of, premium, if any,
and interest on Senior Indebtedness due at the time of such payment (whether by acceleration of the
maturity thereof or otherwise) shall first be paid in full.
The Company shall give prompt written notice to the Trustee of the existence of any of the
conditions described in this Section 1402.
Section 1403.
Distribution on Dissolution. Liquidation and Reorganization
.
In the event of any payment or distribution of assets or securities of the Company of any kind
or character, whether in cash, property or securities, to creditors upon any dissolution or winding
up or total or partial liquidation or reorganization of the Company, whether voluntary or
involuntary and whether in bankruptcy, insolvency or receivership proceedings, or upon an
assignment for the benefit of creditors or any other marshaling of the assets and liabilities of
the Company, or upon other proceedings:
(a) all principal of, premium, if any, and interest
due on all Senior Indebtedness shall first be paid in full,
or due provision made for such payment, in accordance with
the terms of such Senior Indebtedness, before any payment is
made on account of the principal of, sinking fund, if any,
premium, if any, or interest on the indebtedness evidenced
by the Subordinated Debt Securities, or before the holders
of the Subordinated Debt Securities shall be entitled to
retain any assets so paid or distributed in respect thereof;
and
(b) any payment or distribution of assets or
securities of the Company of any kind or character, whether
in cash, property or securities (other than securities of
the Company as reorganized or readjusted or securities of
the Company or any other corporation provided for by a plan
of reorganization or readjustment, which are in any such
case subordinated to Senior Indebtedness to the same extent
as the Subordinated Debt Securities), to which the Holders
of the Subordinated Debt Securities or the Trustee for their
benefit would be entitled except for the provisions of this
Section 1403, shall be paid or delivered by the Company or
any receiver, trustee in bankruptcy, liquidating trustee,
84
agent or other person making such payment or distribution directly to the Holders of Senior
Indebtedness (pro rata to each such holder on the basis of the respective amount of Senior
Indebtedness held by such holder) or their representative or representatives or the trustee
or trustees under any indenture pursuant to which any instruments evidencing any Senior
Indebtedness may have been issued, as their respective interests may appear, for
application to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in full in accordance with the terms of such
Senior Indebtedness, after giving effect to any concurrent payment or distribution to or
for the Holders of Senior Indebtedness, before any payment or distribution is made to the
Holders of the Subordinated Debt Securities.
The Company shall give prompt written notice to the Trustee of any dissolution, winding up,
liquidation or reorganization of the Company within the meaning of Section 1403.
Section 1404.
Payment to Holders of Senior Indebtedness.
Subject to the provisions of Section 1406, in the event that, notwithstanding the provisions
of Section 1402 or Section 1403, any payment or distribution of assets or securities of the Company
of any kind or character, whether in cash, property or securities shall be received by the Trustee
or the Holders of the Subordinated Debt Securities (i) from the Company in violation of such
provisions, or (ii) from any other person under such circumstances that such payment would, if made
directly by the Company, be in violation of such provisions, such payment or distribution shall
immediately be paid over by the Trustee or such holders to the holders of Senior Indebtedness or
their representative or representatives, or to the trustee or trustees under any indenture under
which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts then due on account of the principal of, premium, if any, and
interest on such Senior Indebtedness (after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness), to the extent necessary to pay in full all such
amounts then due.
Upon any payment or distribution of assets or securities of the Company referred to in
Sections 1402 and 1403, the Trustee and the Holders of the Subordinated Debt Securities shall be
entitled to rely upon any order or decree of a court of competent jurisdiction, or upon any
certificate of any liquidating trustee or agent or other person making any payment or distribution
to the Trustee or to the Holders of the Subordinated Debt Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness, the amount thereof or payment thereon,
85
the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this
Article Fourteen. In the event that the Trustee determines, in good faith, that further evidence
is required with respect to the right of any person as a holder of Senior Indebtedness to
participate in any payment or distribution referred to in Sections 1402 and 1403, the Trustee may
request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such person, as to the extent to which such person is
entitled to participation in such payment or distribution, and as to other facts pertinent to the
rights of such person under Sections 1402 and 1403, and if such evidence is not furnished, the
Trustee may defer any payment to such person pending judicial determination as to the right of such
person to receive such payment.
Section 1405.
Subrogation.
Subject to the payment in full of all amounts then due (whether by acceleration of the
maturity thereof or otherwise) on account of the principal of, premium, if any, and interest on all
Senior Indebtedness at the time outstanding, the Holders of the Subordinated Debt Securities shall
be subrogated to the rights of each holder of Senior Indebtedness (to the extent of the payments or
distributions made to such holder pursuant to the provisions of Sections 1402, 1403 and 1404) to
receive payments or distributions of assets or securities of the Company applicable to the Senior
Indebtedness until the Subordinated Debt Securities shall be paid in full, and each holder of
Senior Indebtedness by the act of accepting such payments or distributions pursuant to the
provisions of Sections 1402, 1403 and 1404 shall be deemed to have agreed to the subrogation
aforesaid. No payments or distributions of assets or securities of the Company applicable to Senior
Indebtedness which the Holders of the Subordinated Debt Securities receive by reason of their being
subrogated to the rights of the holders of such Senior Indebtedness pursuant to the provisions of
Sections 1402, 1403 and 1404 shall, as between the Company, its creditors other than the holders of
Senior Indebtedness, and the Holders of the Subordinated Debt Securities, be deemed to be a payment
by the Company on account of the Subordinated Debt Securities, it being understood that the
provisions of this Article Fourteen are intended solely for the purpose of defining the relative
rights of the Holders of the Subordinated Debt Securities, on the one hand, and the holders of the
Senior Indebtedness, on the other hand, and nothing contained in this Article Fourteen or elsewhere
in this Indenture, or in the Subordinated Debt Securities, is intended to or shall impair, as
between the Company, its creditors other than the holders of Senior Indebtedness, and the Holders
of the Subordinated Debt Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Subordinated Debt Securities the principal of, premium,
if any, and interest on the
86
Subordinated Debt Securities, as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the Holders of the
Subordinated Debt Securities and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any
Subordinated Debt Securities from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this Article Fourteen of
the holders of Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Section 1406.
Payment on Subordinated Debt Securities Permitted
.
Nothing contained in this Article Fourteen or elsewhere in this Indenture, or in any of the
Subordinated Debt Securities, shall prevent the Company from making payment of the principal of,
sinking fund for, if any, premium, if any, or interest on the Subordinated Debt Securities, at any
time, except under the conditions described in Section 1402 and except during the pendency of any
dissolution, winding up, liquidation or reorganization of the Company within the meaning of Section
1403. Nothing contained in this Article Fourteen or elsewhere in this Indenture, or in any of the
Subordinated Debt Securities, shall prevent the application by the Trustee of any moneys deposited
with it hereunder for the purpose, to the payment of or on account of the principal of, sinking
fund for, if any, or premium, if any, or interest on the Subordinated Debt Securities, unless,
prior to the business day next preceding the date upon which such principal sinking fund payment or
premium shall have become payable, or, in the case of any payment of or on account of interest
unless, prior to two Business Days before the date upon which such interest shall have become
payable, the Trustee shall have received written notice, directed to it at its Corporate Trust
Office, from the Company or any holder of Senior Indebtedness of any trustee therefor of the
existence of any of the conditions described in Section 1402 or of any dissolution, winding up,
liquidation or reorganization of the Company within the meaning of Section 1403.
Section 1407.
Authorization of Holders to Trustee to Effect Subordination.
Each Holder of Subordinated Debt Securities by his acceptance thereof authorizes and directs
the Trustee in his behalf to take such action as may be necessary or appropriate to effectuate, as
between the Holders of the Subordinated Debt Securities and the holders of Senior Indebtedness, the
subordination provided in this Article Fourteen and appoints the Trustee his attorney-in-fact for
any and all such purposes.
87
Section 1408.
Trustee as Holder of Senior Indebtedness
.
The Trustee shall be entitled to all the rights set forth in this Article Fourteen in respect
of any Senior Indebtedness at any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in Section 613 or elsewhere in this Indenture shall deprive or be
construed to deprive the Trustee of its rights as such holder.
Section 1409.
Notices to Trustee
.
Notwithstanding the provisions of this Article Fourteen or any other provisions of this
Indenture, the Trustee shall not be charged with the knowledge of the existence of any Senior
Indebtedness or of any facts which would prohibit the making of any payment of moneys to or by the
Trustee, unless and until the Trustee shall have received written notice thereof, directed to it at
its Corporate Trust Office, from the Company or any holder of Senior Indebtedness or any trustee
thereof.
Section 1410.
No Fiduciary Duty by Trustee to Holders of Senior Indebtedness
.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Holders of Subordinated Debt Securities or the Company or any other person moneys or
assets to which any holders of Senior Indebtedness shall be entitled by virtue of this Article
Fourteen or otherwise.
Section 1411.
Paving Agent Treated as Trustee
.
In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term Trustee as used in this Article Fourteen shall in
such case (unless the context shall otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article Fourteen in place of the Trustee.
* * * * *
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.
88
In Witness Whereof, the parties hereto have caused this Indenture to be duly executed, and
their respective corporate seals to be hereunto affixed and attested, all as of the day and year
first above written.
|
|
|
|
|
|
OLD REPUBLIC INTERNATIONAL
CORPORATION
|
|
|
By
|
/s/ [ILLIGIBLE]
|
|
|
|
President
|
|
|
|
|
|
|
WILMINGTON TRUST COMPANY
as Trustee
|
|
|
By
|
/s/ [ILLIGIBLE]
|
|
|
|
Vice President
|
|
|
|
|
|
89
|
|
|
State of Illinois
|
|
|
|
|
ss:
|
County of Cook
|
|
|
On the 15th day of August, 1992, before me personally came
A. C. Zucaro, to me known, who, being by me duly sworn, did
depose and say that he is President of Old Republic International Corporation, one of the
corporations described in and which executed the foregoing instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
|
|
|
|
|
|
OFFICIAL SEAL
CATHERINE M. GIBLIN
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 12/24/95
|
|
/s/ Catherine M. Giblin
|
|
|
|
|
State of Delaware
|
|
|
|
|
ss:
|
County of New Castle
|
|
|
On
the 24th day of August, 1992 before me personally came Emmett R.
Harmon, to me known, who, being by me duly sworn, did depose and say that he is Vice President of Wilmington Trust Company, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
|
|
|
|
|
|
|
|
/s/ Sonya F. Allen
|
|
|
|
|
|
|
|
|
|
|
SONYA F. ALLEN
NOTARY PUBLIC
My Commission expires May 30, 1994
|
|
90
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) __
WILMINGTON TRUST COMPANY
(Exact name of Trustee as specified in its charter)
|
|
|
Delaware
|
|
51-0055023
|
(Jurisdiction of incorporation of organization if not a U.S.
|
|
(I.R.S. Employer Identification No.)
|
national bank)
|
|
|
1100 North Market Street
Wilmington, Delaware 19890-0001
(302) 651-1000
(Address of principal executive offices, including zip code)
Michael A. DiGregorio
Senior Vice President and General Counsel
Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-0001
(302) 651-8793
(Name, address, including zip code, and telephone number, including area code, of agent of service)
OLD REPUBLIC INTERNATIONAL CORPORATION
(Exact name of obligor as specified in its charter)
|
|
|
DELAWARE
|
|
36-2678171
|
(State or other jurisdiction or incorporation or organization)
|
|
(I.R.S. Employer Identification No.)
|
307 NORTH MICHIGAN AVENUE
CHICAGO, ILLINOIS 60601-5382
(Address of principal executive offices, including zip code)
DEBT SECURITIES
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
|
|
|
Federal Reserve Bank of Philadelphia
|
|
State Bank Commissioner
|
Ten Independence Mall
|
|
555 East Lockerman Street, Suite 210
|
Philadelphia, PA 19106-1574
|
|
Dover, Delaware 19901
|
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each affiliation:
Based upon an examination of the books and records of the trustee and information
available to the trustee, the obligor is not an affiliate of the trustee.
ITEM 16. LIST OF EXHIBITS.
Listed below are all exhibits filed as part of this Statement of Eligibility and
Qualification.
Exhibit 1. Copy of the Charter of Wilmington Trust Company:
Exhibit 2 Certificate of Authority of Wilmington Trust Company to commence business
included in Exhibit 1 above.
Exhibit 3 Authorization of Wilmington Trust Company to exercise corporate trust
powers included in Exhibit 1 above.
Exhibit 4. Copy of By-Laws of Wilmington Trust Company.
Exhibit 5. Not applicable.
Exhibit 6. Consent of Wilmington Trust Company required by Section 321(b) of the Trust
Indenture Act.
Exhibit 7. Copy of most recent Report of Condition of Wilmington Trust Company.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee,
Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly
caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 20
TH
day of April
2009.
|
|
|
|
|
|
|
|
|
[SEAL]
|
|
|
|
WILMINGTON TRUST COMPANY
|
|
|
|
|
|
|
|
|
|
|
|
Attest:
|
/s/ Prital Patel
Assistant Secretary
|
|
|
By:
|
/s/ Mary St. Amand
Name: Mary St. Amand
Title: Vice President
|
|
|
EXHIBIT 1*
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
|
|
|
*
|
|
Exhibit 1 also constitutes Exhibits 2 and 3.
|
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company
, originally incorporated by an Act of the General Assembly of the
State of Delaware, entitled An Act to Incorporate the Delaware Guarantee and Trust Company,
approved March 2, A.D. 1901, and the name of which company was changed to
Wilmington Trust
Company
by an amendment filed in the Office of the Secretary of State on March 18, A.D. 1903, and
the Charter or Act of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust companies of the
State of Delaware, does hereby alter and amend its Charter or Act of Incorporation so that the same
as so altered and amended shall in its entirety read as follows:
First:
The name of this corporation is
Wilmington Trust Company
.
Second:
The location of its principal office in the State of Delaware is at Rodney
Square North, in the City of Wilmington, County of New Castle; the name of its resident
agent is
Wilmington Trust Company
whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and operates branch
offices in the City of Newark, New Castle County, Delaware, the Town of Newport, New Castle
County, Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle County
Delaware, and at Milford Cross Roads, New Castle County, Delaware, and shall be empowered to
open, maintain and operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of business as may be authorized
from time to time by the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
Third:
(a) The nature of the business and the objects and purposes proposed to be
transacted, promoted or carried on by this Corporation are to do any or all of the things
herein mentioned as fully and to the same extent as natural persons might or could do and in
any part of the world, viz.:
|
(1)
|
|
To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at pleasure, to
hold, purchase, convey, mortgage or otherwise deal in real and personal estate
and property, and to appoint such officers and agents as the business of the
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of money, or securities
for money, to buy gold and silver bullion and foreign coins, to buy and sell
bills of exchange, and generally to use, exercise and enjoy all the powers,
rights, privileges and franchises incident to a corporation which are proper or
necessary for the transaction of the business of the Corporation hereby
created.
|
|
|
(2)
|
|
To insure titles to real and personal property, or any estate
or interests therein, and to guarantee the holder of such property, real or
personal, against any claim or claims, adverse to his interest therein, and to
prepare and give certificates of
|
|
|
|
title for any lands or premises in the State of Delaware, or
elsewhere.
|
|
|
(3)
|
|
To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the purchase,
sale, management and disposal of property of all descriptions, and to prepare
and execute all papers which may be necessary or proper in such business.
|
|
|
(4)
|
|
To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description, and to
carry on the business of conveyance in all its branches.
|
|
|
(5)
|
|
To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort and kind,
from executors, administrators, guardians, public officers, courts, receivers,
assignees, trustees, and from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other receptacles for such
property.
|
|
|
(6)
|
|
To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting the stock,
bonds or other obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund therefore on such
terms as may be agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
|
|
|
(7)
|
|
To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic, corporation,
association or person, either alone or in conjunction with any other person or
persons, corporation or corporations.
|
|
|
(8)
|
|
To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons, for the
faithful performance of any trust, office, duty, contract or agreement, either
by itself or in conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond, recognizance,
obligation, judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now or hereafter
be required by any law, judge, officer or court in the State of Delaware or
elsewhere.
|
|
|
(9)
|
|
To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such trustee, trustee
in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons, corporations, court, officer,
or authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver, assignee,
|
2
|
|
|
assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other
trust capacity, it shall not be required to give bond with surety, but its
capital stock shall be taken and held as security for the performance of the
duties devolving upon it by such appointment.
|
|
|
(10)
|
|
And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the duties
which it may undertake or be called upon to perform, or for the assumption of
any responsibility the said Corporation may be entitled to receive a proper
compensation.
|
|
|
(11)
|
|
To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities, obligations,
contracts and evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the Government of
the United States, or of any state, territory, colony, or possession thereof,
or of any foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property held and owned by it,
and to exercise in respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences of
indebtedness and other property, any and all the rights, powers and privileges
of individual owners thereof, including the right to vote thereon; to invest
and deal in and with any of the moneys of the Corporation upon such securities
and in such manner as it may think fit and proper, and from time to time to
vary or realize such investments; to issue bonds and secure the same by pledges
or deeds of trust or mortgages of or upon the whole or any part of the property
held or owned by the Corporation, and to sell and pledge such bonds, as and
when the Board of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate or interest therein.
|
(b) In furtherance of, and not in limitation, of the powers conferred by the laws of
the State of Delaware, it is hereby expressly provided that the said Corporation shall also
have the following powers:
|
(1)
|
|
To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the world.
|
|
|
(2)
|
|
To acquire the good will, rights, property and franchises and
to undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in cash,
stock of this Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so purchased; to conduct in
any lawful manner the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and about the conduct and
management of such business.
|
|
|
(3)
|
|
To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of property,
real, personal
|
3
|
|
|
or mixed, wherever situated.
|
|
(4)
|
|
To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without limit as
to amount, to draw, make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and
other negotiable or transferable instruments.
|
|
|
(5)
|
|
To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as natural
persons might or could do, to purchase or otherwise acquire, to hold, own, to
mortgage, sell, convey or otherwise dispose of, real and personal property, of
every class and description, in any State, District, Territory or Colony of the
United States, and in any foreign country or place.
|
|
|
(6)
|
|
It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where otherwise
expressed in said paragraph) be nowise limited or restricted by reference to or
inference from the terms of any other clause of this or any other paragraph in
this charter, but that the objects, purposes and powers specified in each of
the clauses of this paragraph shall be regarded as independent objects,
purposes and powers.
|
Fourth:
(a) The total number of shares of all classes of stock which the Corporation
shall have authority to issue is forty-one million (41,000,000) shares, consisting of:
|
(1)
|
|
One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as Preferred Stock); and
|
|
|
(2)
|
|
Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as Common Stock).
|
(b) Shares of Preferred Stock may be issued from time to time in one or more series as
may from time to time be determined by the Board of Directors each of said series to be
distinctly designated. All shares of any one series of Preferred Stock shall be alike in
every particular, except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the preferences and
relative, participating, optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may differ from those of any
and all other series at any time outstanding; and, subject to the provisions of subparagraph
1 of Paragraph (c) of this Article
Fourth
, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions adopted prior to the
issuance of any shares of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including, but without limiting
the generality of the foregoing, the following:
|
(1)
|
|
The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may be
increased (except where otherwise provided by the Board of Directors) or
decreased (but not below the number of shares thereof then outstanding) from
time to time by like action of the
|
4
|
(2)
|
|
The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be paid, the
extent of the preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or series of the same or other
class of stock and whether such dividends shall be cumulative or
non-cumulative;
|
|
|
(3)
|
|
The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of any other
class or classes or of any series of the same or any other class or classes of
stock of the Corporation and the terms and conditions of such conversion or
exchange;
|
|
|
(4)
|
|
Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or times at
which, and the terms and conditions on which, Preferred Stock of such series
may be redeemed.
|
|
|
(5)
|
|
The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding-up, of the Corporation.
|
|
|
(6)
|
|
The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such series; and
|
|
|
(7)
|
|
The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the foregoing
include the right, voting as a series or by itself or together with other
series of Preferred Stock or all series of Preferred Stock as a class, to elect
one or more directors of the Corporation if there shall have been a default in
the payment of dividends on any one or more series of Preferred Stock or under
such circumstances and on such conditions as the Board of Directors may
determine.
|
|
|
(c)
|
(1)
|
After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article
Fourth
), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with respect
to the setting aside of sums as sinking funds or redemption or purchase
accounts (fixed in accordance with the provisions of section (b) of this
Article
Fourth
), and subject further to any conditions which may be fixed in
accordance with the provisions of section (b) of this Article
Fourth
, then and
not otherwise the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of Directors.
|
|
|
(2)
|
|
After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this Article
Fourth
), to be distributed to the holders of Preferred Stock in the event of
voluntary or involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to receive all of the remaining assets of the Corporation,
tangible and intangible, of whatever kind available for
|
5
|
|
|
distribution to stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
|
|
|
(3)
|
|
Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of Directors
pursuant to section (b) of this Article
Fourth
, each holder of Common Stock
shall have one vote in respect of each share of Common Stock held on all
matters voted upon by the stockholders.
|
(d) No holder of any of the shares of any class or series of stock or of options,
warrants or other rights to purchase shares of any class or series of stock or of other
securities of the Corporation shall have any preemptive right to purchase or subscribe for
any unissued stock of any class or series or any additional shares of any class or series to
be issued by reason of any increase of the authorized capital stock of the Corporation of
any class or series, or bonds, certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of stock or securities
convertible into or exchangeable for stock, or carrying any right to purchase stock, may be
issued and disposed of pursuant to resolution of the Board of Directors to such persons,
firms, corporations or associations, whether such holders or others, and upon such terms as
may be deemed advisable by the Board of Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of Preferred Stock in
relation to the relative powers, preferences and rights of each other series of Preferred
Stock shall, in each case, be as fixed from time to time by the Board of Directors in the
resolution or resolutions adopted pursuant to authority granted in section (b) of this
Article
Fourth
and the consent, by class or series vote or otherwise, of the holders of such
of the series of Preferred Stock as are from time to time outstanding shall not be required
for the issuance by the Board of Directors of any other series of Preferred Stock whether or
not the powers, preferences and rights of such other series shall be fixed by the Board of
Directors as senior to, or on a parity with, the powers, preferences and rights of such
outstanding series, or any of them; provided, however, that the Board of Directors may
provide in the resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article
Fourth
that the consent of the holders of a majority
(or such greater proportion as shall be therein fixed) of the outstanding shares of such
series voting thereon shall be required for the issuance of any or all other series of
Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of Preferred Stock
may be issued from time to time as the Board of Directors of the Corporation shall determine
and on such terms and for such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of Directors of
the Corporation shall determine and on such terms and for such consideration as shall be
fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock may, without
a class or series vote, be increased or decreased from time to time by the affirmative vote
of the holders of a majority of the stock of the Corporation entitled to vote thereon.
6
Fifth:
(a) The business and affairs of the Corporation shall be conducted and
managed by a Board of Directors. The number of directors constituting the entire Board
shall be not less than five nor more than twenty-five as fixed from time to time by vote of
a majority of the whole Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office, and provided
further, that the number of directors constituting the whole Board shall be twenty-four
until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly equal in
number as the then total number of directors constituting the whole Board permits, with the
term of office of one class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for a term expiring at
the next succeeding annual meeting, directors of the second class shall be elected to hold
office for a term expiring at the second succeeding annual meeting and directors of the
third class shall be elected to hold office for a term expiring at the third succeeding
annual meeting. Any vacancies in the Board of Directors for any reason, and any newly
created directorships resulting from any increase in the directors, may be filled by the
Board of Directors, acting by a majority of the directors then in office, although less than
a quorum, and any directors so chosen shall hold office until the next annual election of
directors. At such election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director shall have been
chosen and until his successor shall be elected and qualified. No decrease in the number of
directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of Incorporation or the
By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the By-Laws of the Corporation),
any director or the entire Board of Directors of the Corporation may be removed at any time
without cause, but only by the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of Directors or
by any stockholder entitled to vote for the election of directors. Such nominations shall
be made by notice in writing, delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of directors; provided,
however, that if less than 21 days notice of the meeting is given to stockholders, such
written notice shall be delivered or mailed, as prescribed, to the Secretary of the
Corporation not later than the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations which are proposed by the
Board of Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age, business
address and, if known, residence address of each nominee proposed in such notice, (ii) the
principal occupation or employment of such nominee and (iii) the number of shares of stock
of the Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and declare to
7
the meeting that a nomination was not made in accordance with the foregoing procedure,
and if he should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or special
meeting of stockholders of the Corporation may be taken without a meeting, and the power of
stockholders to consent in writing, without a meeting, to the taking of any action is
specifically denied.
Sixth:
The Directors shall choose such officers, agents and servants as may be
provided in the By-Laws as they may from time to time find necessary or proper.
Seventh:
The Corporation hereby created is hereby given the same powers, rights and
privileges as may be conferred upon corporations organized under the Act entitled An Act
Providing a General Corporation Law, approved March 10, 1899, as from time to time amended.
Eighth:
This Act shall be deemed and taken to be a private Act.
Ninth:
This Corporation is to have perpetual existence.
Tenth:
The Board of Directors, by resolution passed by a majority of the whole Board,
may designate any of their number to constitute an Executive Committee, which Committee, to
the extent provided in said resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of the Corporation to
be affixed to all papers which may require it.
Eleventh:
The private property of the stockholders shall not be liable for the
payment of corporate debts to any extent whatever.
Twelfth:
The Corporation may transact business in any part of the world.
Thirteenth:
The Board of Directors of the Corporation is expressly authorized to
make, alter or repeal the By-Laws of the Corporation by a vote of the majority of the entire
Board. The stockholders may make, alter or repeal any By-Law whether or not adopted by
them, provided however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class).
Fourteenth:
Meetings of the Directors may be held outside of the State of Delaware at
such places as may be from time to time designated by the Board, and the Directors may keep
the books of the Company outside of the State of Delaware at such places as may be from time
to time designated by them.
Fifteenth:
(a) (1) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this Article
Fifteenth:
|
(A)
|
|
any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter
|
8
|
|
|
defined) with or into (i) any Interested Stockholder (as hereinafter defined) or
(ii) any other corporation (whether or not itself an Interested Stockholder),
which, after such merger or consolidation, would be an Affiliate (as
hereinafter defined) of an Interested Stockholder, or
|
|
|
(B)
|
|
any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions) to or with
any Interested Stockholder or any Affiliate of any Interested Stockholder of
any assets of the Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
|
|
|
(C)
|
|
the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any securities of
the Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate fair market value
of $1,000,000 or more, or
|
|
|
(D)
|
|
the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
|
|
|
(E)
|
|
any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or consolidation
of the Corporation with any of its Subsidiaries or any similar transaction
(whether or not with or into or otherwise involving an Interested Stockholder)
which has the effect, directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or convertible
securities of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any Interested
Stockholder,
|
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote generally in
the election of directors, considered for the purpose of this Article
Fifteenth
as
one class (Voting Shares). Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that some lesser
percentage may be specified, by law or in any agreement with any national securities
exchange or otherwise.
|
(2)
|
|
The term business combination as used in this Article
Fifteenth
shall mean any transaction which is referred to in any one or more of
clauses (A) through (E) of paragraph 1 of the section (a).
|
(b) The provisions of section (a) of this Article
Fifteenth
shall not be applicable to
any particular business combination and such business combination shall require only such
affirmative vote as is required by law and any other provisions of the Charter or Act of
Incorporation or By-Laws if such business combination has been approved by a majority of the
whole Board.
|
(c)
|
|
For the purposes of this Article
Fifteenth
:
|
|
|
(1)
|
|
A person shall mean any individual, firm, corporation or other entity.
|
9
|
(2)
|
|
Interested Stockholder shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who or
which as of the record date for the determination of stockholders entitled to
notice of and to vote on such business combination, or immediately prior to the
consummation of any such transaction:
|
|
(A)
|
|
is the beneficial owner, directly or
indirectly, of more than 10% of the Voting Shares, or
|
|
|
(B)
|
|
is an Affiliate of the Corporation and at any
time within two years prior thereto was the beneficial owner, directly
or indirectly, of not less than 10% of the then outstanding voting
Shares, or
|
|
|
(C)
|
|
is an assignee of or has otherwise succeeded in
any share of capital stock of the Corporation which were at any time
within two years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred in
the course of a transaction or series of transactions not involving a
public offering within the meaning of the Securities Act of 1933.
|
|
(3)
|
|
A person shall be the beneficial owner of any Voting Shares:
|
|
(A)
|
|
which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly or
indirectly, or
|
|
|
(B)
|
|
which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant to
any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (ii) the right to vote pursuant to any agreement, arrangement or
understanding, or
|
|
|
(C)
|
|
which are beneficially owned, directly or
indirectly, by any other person with which such first mentioned person
or any of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
|
|
(4)
|
|
The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon exercise
of conversion rights, warrants or options or otherwise.
|
|
|
(5)
|
|
Affiliate and Associate shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
|
|
|
(6)
|
|
Subsidiary shall mean any corporation of which a majority of
any class of
|
10
|
|
|
equity security (as defined in Rule 3a11-1 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December 31, 1981)
is owned, directly or indirectly, by the Corporation; provided, however, that
for the purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term Subsidiary shall mean only a
corporation of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
|
(d) majority of the directors shall have the power and duty to determine for the
purposes of this Article
Fifteenth
on the basis of information known to them, (1) the number
of Voting Shares beneficially owned by any person (2) whether a person is an Affiliate or
Associate of another, (3) whether a person has an agreement, arrangement or understanding
with another as to the matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or any Subsidiary has an aggregate
fair market value of $1,000,000 or more.
(e) Nothing contained in this Article
Fifteenth
shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
Sixteenth:
Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any other vote that may
be required by law, this Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal any provision of Articles
Fifth, Thirteenth, Fifteenth
or
Sixteenth
of this Charter or Act of Incorporation.
Seventeenth:
(a) a Director of this Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a Director, except to the
extent such exemption from liability or limitation thereof is not permitted under the
Delaware General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not adversely affect
any right or protection of a Director of the Corporation existing hereunder with respect to
any act or omission occurring prior to the time of such repeal or modification.
11
ADOPTED: January 21, 2009
EXHIBIT 4
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
ARTICLE 1
Stockholders Meetings
Section 1.
Annual Meeting
. The annual meeting of stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at such other date,
time or place as may be designated by resolution by the Board of Directors.
Section 2.
Special Meetings
. Special meetings of stockholders may be called at any
time by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the
President.
Section 3.
Notice
. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his last known address,
a written or printed notice fixing the time and place of such meeting.
Section 4.
Quorum
. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall constitute a quorum at all
meetings of stockholders for the transaction of any business, but the holders of a smaller number
of shares may adjourn from time to time, without further notice, until a quorum is secured. At
each annual or special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock registered in the stockholders name on the
books of the Company on the record date for any such meeting as determined herein.
ARTICLE 2
Directors
Section 1.
Management
. The affairs and business of the Company shall be managed by
or under the direction of the Board of Directors.
Section 2.
Number
. The authorized number of directors that shall constitute the
Board of Directors shall be fixed from time to time by or pursuant to a resolution passed by a
majority of the Board of Directors within the parameters set by the Charter of the Company. No more
than
two directors may also be employees of the Company or any affiliate thereof.
Section 3.
Qualification
. In addition to any other provisions of these Bylaws, to be
qualified for nomination for election or appointment to the Board of Directors, a person must have
not attained the age of sixty-nine years at the time of such election or appointment, provided
however, the Nominating and Corporate Governance Committee may waive such qualification as to a
particular candidate otherwise qualified to serve as a director upon a good faith determination by
such committee that such a waiver is in the best interests of the Company and its stockholders.
The Chairman of the Board and the Chief Executive Officer shall not be qualified to continue to
serve as directors upon the termination of their service in those offices for any reason.
Section 4.
Meetings
. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a majority of its
members, or at the call of the Chairman of the Board of Directors, the Chief Executive Officer or
the President.
Section 5.
Special Meetings
. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board, the Chief Executive Officer or the President, and
shall be called upon the written request of a majority of the directors.
Section 6.
Quorum
. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting of the Board of
Directors.
Section 7.
Notice
. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or place of any regular
meeting, stating the time and place of such meeting, which shall be mailed not less than two days
before the time of holding such meeting.
Section 8.
Vacancies
. In the event of the death, resignation, removal, inability to
act or disqualification of any director, the Board of Directors, although less than a quorum, shall
have the right to elect the successor who shall hold office for the remainder of the full term of
the class of directors in which the vacancy occurred, and until such directors successor shall
have been duly elected and qualified.
Section 9.
Organization Meeting
. The Board of Directors at its first meeting after
its election by the stockholders shall appoint an Audit Committee, a Compensation Committee and a
Nominating and Corporate Governance Committee, and shall elect from its own members a Chairman of
the Board, a Chief Executive Officer and a President, who may be the same person. The Board of
Directors shall also elect at such meeting a Secretary and a Chief Financial Officer, who may be
the same person, and may appoint at any time such committees as it may deem advisable. The Board
of Directors may also elect at such meeting one or more Associate
2
Directors. The Board of Directors, or a committee designated by the Board of Directors may elect
or appoint such other officers as they may deem advisable.
Section 10.
Removal
. The Board of Directors may at any time remove, with or without
cause, any member of any committee appointed by it or any associate director or officer elected by
it and may appoint or elect his successor.
Section 11.
Responsibility of Officers
. The Board of Directors may designate an
officer to be in charge of such departments or divisions of the Company as it may deem advisable.
Section 12.
Participation in Meetings
. The Board of Directors or any committee of
the Board of Directors may participate in a meeting of the Board of Directors or such committee, as
the case may be, by conference telephone, video facilities or other communications equipment. Any
action required or permitted to be taken at any meeting of the Board of Directors or any committee
thereof may be taken without a meeting if all of the members of the Board of Directors or the
committee, as the case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of the Board of Directors or such committee.
ARTICLE 3
Committees of the Board of Directors
Section 1.
Audit Committee.
(A) The Audit Committee shall be composed of not less than three (3) members, who shall be
selected by the Board of Directors from its own members, none of whom shall be an officer or
employee of the Company, and shall hold office at the pleasure of the Board.
(B) The Audit Committee shall have general supervision over the Audit Services Division in all
matters however subject to the approval of the Board of Directors; it shall consider all matters
brought to its attention by the officer in charge of the Audit Services Division, review all
reports of examination of the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of Directors with respect
thereto or with respect to any other matters pertaining to auditing the Company as it shall deem
desirable.
(C) The Audit Committee shall meet whenever and wherever its Chairperson, the Chairman of the
Board, the Chief Executive Officer, the President or a majority of the Committees members shall
deem it to be proper for the transaction of its business. A majority of the Committees members
shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at
which a quorum is present shall constitute action by the
3
Committee.
Section 2.
Compensation Committee.
(A) The Compensation Committee shall be composed of not less than three (3) members, who shall
be selected by the Board of Directors from its own members, none of whom shall be an officer or
employee of the Company, and shall hold office at the pleasure of the Board of Directors.
(B) The Compensation Committee shall in general advise upon all matters of policy concerning
compensation, including salaries and employee benefits.
(C) The Compensation Committee shall meet whenever and wherever its Chairperson, the Chairman
of the Board, the Chief Executive Officer, the President or a majority of the Committees members
shall deem it to be proper for the transaction of its business. A majority of the Committees
members shall constitute a quorum for the transaction of business. The acts of the majority at a
meeting at which a quorum is present shall constitute action by the Committee.
Section 3.
Nominating and Corporate Governance Committee.
(A) The Nominating and Corporate Governance Committee shall be composed of not less than three
(3) members, who shall be selected by the Board of Directors from its own members, none of whom
shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board
of Directors.
(B) The Nominating and Corporate Governance Committee shall provide counsel and make
recommendations to the Chairman of the Board and the full Board with respect to the performance of
the Chairman of the Board and the Chief Executive Officer, candidates for membership on the Board
of Directors and its committees, matters of corporate governance, succession planning for the
Companys executive management and significant shareholder relations issues.
(C) The Nominating and Corporate Governance Committee shall meet whenever and wherever its
Chairperson, the Chairman of the Board, the Chief Executive Officer, the President, or a majority
of the Committees members shall deem it to be proper for the transaction of its business. A
majority of the Committees members shall constitute a quorum for the transaction of business. The
acts of the majority at a meeting at which a quorum is present shall constitute action by the
Committee.
Section 4.
Other Committees
. The Company may have such other committees with such
powers as the Board may designate from time to time by resolution or by an amendment to these
Bylaws.
4
Section 5.
Associate Directors.
(A) Any person who has served as a director may be elected by the Board of Directors as an
associate director, to serve at the pleasure of the Board of Directors.
(B) Associate directors shall be entitled to attend all meetings of directors and participate
in the discussion of all matters brought to the Board of Directors, but will not have a right to
vote.
Section 6.
Absence or Disqualification of Any Member of a Committee.
In the absence
or disqualification of any member of any committee created under Article III of these Bylaws, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or disqualified member.
ARTICLE 4
Officers
Section 1.
Chairman of the Board
. The Chairman of the Board shall preside at all
meetings of the Board of Directors and shall have such further authority and powers and shall
perform such duties the Board of Directors may assign to him from time to time.
Section 2.
Chief Executive Officer
. The Chief Executive Officer shall have the
powers and duties pertaining to the office of Chief Executive Officer conferred or imposed upon him
by statute, incident to his office or as the Board of Directors may assign to him from time to
time. In the absence of the Chairman of the Board, the Chief Executive Officer shall have the
powers and duties of the Chairman of the Board.
Section 3.
President
. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute, incident to his office or as
the Board of Directors may assign to him from time to time. In the absence of the Chairman of the
Board and the Chief Executive Officer, the President shall have the powers and duties of the
Chairman of the Board.
Section 4.
Duties
. The Chairman of the Board, the Chief Executive Officer or the
President, as designated by the Board of Directors, shall carry into effect all legal directions of
the Board of Directors and shall at all times exercise general supervision over the interest,
affairs and operations of the Company and perform all duties incident to his office.
Section 5.
Vice Presidents
. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all of the duties of the
Chairman of the Board, the Chief Executive Officer and/or the President and such other powers and
duties incident to their respective offices or as the Board of Directors, the Chairman of the
5
Board, the Chief Executive Officer or the President or the officer in charge of the department or
division to which they are assigned may assign to them from time to time.
Section 6.
Secretary
. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the committees thereof, to the keeping
of accurate minutes of all such meetings, recording the same in the minute books of the Company and
in general notifying the Board of Directors of material matters affecting the Company on a timely
basis. In addition to the other notice requirements of these Bylaws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed well in advance of the
scheduled date of any such meeting. He shall have custody of the corporate seal, affix the same to
any documents requiring such corporate seal, attest the same and perform other duties incident to
his office.
Section 7.
Chief Financial Officer
. The Chief Financial Officer shall have general
supervision over all assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all transactions of the Company. He
shall have general supervision of the expenditures of the Company and periodically shall report to
the Board of Directors the condition of the Company, and perform such other duties incident to his
office or as the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the
President may assign to him from time to time.
Section 8.
Controller
. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting, and shall render to
the Board of Directors or the Audit Committee at appropriate times a report relating to the general
condition and internal operations of the Company and perform other duties incident to his office.
There may be one or more subordinate accounting or controller officers however denominated,
who may perform the duties of the Controller and such duties as may be prescribed by the
Controller.
Section 9.
Audit Officers
. The officer designated by the Board of Directors to be in
charge of the Audit Services Division of the Company, with such title as the Board of Directors
shall prescribe, shall report to and be directly responsible to the Audit Committee and the Board
of Directors.
There shall be an Auditor and there may be one or more Audit Officers, however denominated,
who may perform all the duties of the Auditor and such duties as may be prescribed by the officer
in charge of the Audit Services Division.
Section 10.
Other Officers
. There may be one or more officers, subordinate in rank
to all Vice Presidents with such functional titles as shall be determined from time to time by the
Board of Directors, who shall ex officio hold the office of Assistant Secretary of the Company and
who
6
may perform such duties as may be prescribed by the officer in charge of the department or
division to which they are assigned.
Section 11.
Powers and Duties of Other Officers
. The powers and duties of all other
officers of the Company shall be those usually pertaining to their respective offices, subject to
the direction of the Board of Directors, the Chairman of the Board, the Chief Executive
Officer or the President and the officer in charge of the department or division to which they are
assigned.
Section 12.
Number of Offices
. Any one or more offices of the Company may be held by
the same person, except that (A) no individual may hold more than one of the offices of Chief
Financial Officer, Controller or Audit Officer and (B) none of the Chairman of the Board, the Chief
Executive Officer or the President may hold any office mentioned in Section 12(A).
ARTICLE 5
Stock and Stock Certificates
Section 1.
Transfer
. Shares of stock shall be transferable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall be recorded.
Section 2.
Certificates
. Every holder of stock shall be entitled to have a
certificate signed by or in the name of the Company by the Chairman of the Board, the Chief
Executive Officer or the President or a Vice President, and by the Secretary or an Assistant
Secretary, of the Company, certifying the number of shares owned by him in the Company. The
corporate seal affixed thereto, and any of or all the signatures on the certificate, may be a
facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the Company with the same
effect as if he were such officer, transfer agent or registrar at the date of issue. Duplicate
certificates of stock shall be issued only upon giving such security as may be satisfactory to the
Board of Directors.
Section 3.
Record Date
. The Board of Directors is authorized to fix in advance a
record date for the determination of the stockholders entitled to notice of, and to vote at, any
meeting of stockholders and any adjournment thereof, or entitled to receive payment of any
dividend, or to any allotment of rights, or to exercise any rights in respect of any change,
conversion or exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days
preceding the date of any meeting of stockholders or the date for the payment of any dividend, or
the date for the allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with obtaining such consent.
ARTICLE 6
Seal
7
The corporate seal of the Company shall be in the following form:
Between two concentric circles the words Wilmington Trust Company
within the inner circle the words Wilmington, Delaware.
ARTICLE 7
Fiscal Year
The fiscal year of the Company shall be the calendar year.
ARTICLE 8
Execution of Instruments of the Company
The Chairman of the Board, the Chief Executive Officer, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and authority to enter into,
make, sign, execute, acknowledge and/or deliver and the Secretary or any Assistant Secretary shall
have full power and authority to attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes, mortgages and all
other instruments incident to the business of this Company or in acting as executor, administrator,
guardian, trustee, agent or in any other fiduciary or representative capacity by any and every
method of appointment or by whatever person, corporation, court officer or authority in the State
of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation
by the Board of Directors, and any and all such instruments shall have the same force and validity
as though expressly authorized by the Board of Directors.
ARTICLE 9
Compensation of Directors and Members of Committees
Directors and associate directors of the Company, other than salaried officers of the Company,
shall be paid such reasonable honoraria or fees for attending meetings of the Board of Directors as
the Board of Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company, shall be paid such
reasonable honoraria or fees for services as members of committees as the Board of Directors shall
from time to time determine and directors and associate directors may be authorized by the Company
to perform such special services as the Board of Directors may from time to time determine in
accordance with any guidelines the Board of Directors may adopt for such services, and shall be
paid for such special services so performed reasonable compensation as may be determined by the
Board of Directors.
8
ARTICLE 10
Indemnification
Section 1.
Persons Covered
. The Company shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any
person who was or is made or is threatened to be made a party or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or investigative (a
proceeding) by reason of the fact that he, or a person for whom he is the legal
representative, is or was a director or associate director of the Company, a member of an advisory
board the Board of Directors of the Company or any of its subsidiaries may appoint from time to
time or is or was serving at the request of the Company as a director, officer, employee, fiduciary
or agent of another corporation, partnership, limited liability company, joint venture, trust,
enterprise or non-profit entity that is not a subsidiary or affiliate of the Company, including
service with respect to employee benefit plans, against all liability and loss suffered and
expenses reasonably incurred by such person. The Company shall be required to indemnify such a
person in connection with a proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors.
The Company may indemnify and hold harmless, to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, any person who was or is made or threatened to
be made a party or is otherwise involved in any proceeding by reason of the fact that he, or a
person for whom he is the legal representative, is or was an officer, employee or agent of the
Company or a director, officer, employee or agent of a subsidiary or affiliate of the Company,
against all liability and loss suffered and expenses reasonably incurred by such person. The
Company may indemnify any such person in connection with a proceeding (or part thereof) initiated
by such person only if such proceeding (or part thereof) was authorized by the Board of Directors.
Section 2.
Advance of Expenses
. The Company shall pay the expenses incurred in
defending any proceeding involving a person who is or may be indemnified pursuant to Section 1 in
advance of its final disposition, provided, however, that the payment of expenses incurred by such
a person in advance of the final disposition of the proceeding shall be made only upon receipt of
an undertaking by that person to repay all amounts advanced if it should be ultimately determined
that the person is not entitled to be indemnified under this Article 10 or otherwise.
Section 3.
Certain Rights
. If a claim under this Article 10 for (A) payment of
expenses or (B) indemnification by a director, associate director, member of an advisory board the
Board of Directors of the Company or any of its subsidiaries may appoint from time to time or a
person who is or was serving at the request of the Company as a director, officer, employee,
fiduciary or agent of another corporation, partnership, limited liability company, joint venture,
trust, enterprise or nonprofit entity that is not a subsidiary or affiliate of the Company,
including service with respect to employee benefit plans, is not paid in full within sixty days
after a written claim therefor has been received by the Company, the claimant may file suit to
recover the
9
unpaid amount of such claim and, if successful in whole or in part, shall be entitled
to be paid the expense of prosecuting such claim. In any such action, the Company shall have the
burden of proving that the claimant was not entitled to the requested indemnification or payment of
expenses under applicable law.
Section 4.
Non-Exclusive
. The rights conferred on any person by this Article 10
shall not be exclusive of any other rights which such person may have or hereafter acquire under
any statute, provision of the Charter or Act of Incorporation, these Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 5.
Reduction of Amount
. The Companys obligation, if any, to indemnify any
person who was or is serving at its request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by
any amount such person may collect as indemnification from such other corporation, partnership,
joint venture, trust, enterprise or nonprofit entity.
Section 6.
Effect of Modification
. Any amendment, repeal or modification of the
foregoing provisions of this Article 10 shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the time of such
amendment, repeal or modification.
ARTICLE 11
Amendments to the Bylaws
These Bylaws may be altered, amended or repealed, in whole or in part, and any new Bylaw or
Bylaws adopted at any regular or special meeting of the Board of Directors by a vote of a majority
of all the members of the Board of Directors then in office.
ARTICLE 12
Miscellaneous
Whenever used in these Bylaws, the singular shall include the plural, the plural shall include
the singular unless the context requires otherwise and the use of either gender shall include both
genders.
10
EXHIBIT 6
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust
Company hereby consents that reports of examinations by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
|
|
|
|
|
|
WILMINGTON TRUST COMPANY
|
|
Dated: April 20, 2009
|
By:
|
/s/ Mary St. Amand
|
|
|
|
Name:
|
Mary St. Amand
|
|
|
|
Title:
|
Vice President
|
|
EXHIBIT 7
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been approved
by any state banking authorities. Refer to your appropriate state
banking authorities for your state publication requirements.
REPORT OF CONDITION
Consolidating domestic subsidiaries of the
WILMINGTON
TRUST COMPANY
of
WILMINGTON
Name of Bank
City
in the State of
DELAWARE
, at the close of business on December 31, 2008.
|
|
|
|
|
|
|
|
|
Thousands of dollars
|
|
ASSETS
|
|
|
|
|
|
|
|
|
Cash and balances due from depository institutions:
|
|
|
|
|
|
Noninterest-bearing balances and currency and coins
|
|
|
|
235,368
|
|
Interest-bearing balances
|
|
|
|
0
|
|
Held-to-maturity securities
|
|
|
|
161,627
|
|
Available-for-sale securities
|
|
|
|
752,807
|
|
Federal funds sold in domestic offices
|
|
|
|
122,800
|
|
Securities purchased under agreements to resell
|
|
|
|
45,275
|
|
Loans and lease financing receivables:
|
|
|
|
|
|
Loans and leases held for sale
|
9,335
|
|
|
|
|
Loans and leases, net of unearned income
|
8,753,603
|
|
|
|
|
LESS: Allowance for loan and lease losses
|
139,531
|
|
|
|
|
Loans and leases, net of unearned income, allowance, and reserve
|
|
8,614,072
|
|
Assets held in trading accounts
|
|
|
|
0
|
|
Premises and fixed assets (including capitalized leases)
|
|
|
|
130,053
|
|
Other real estate owned
|
|
|
|
14,467
|
|
Investments in unconsolidated subsidiaries and associated companies
|
|
|
|
7,397
|
|
Intangible assets:
|
|
|
|
|
|
a. Goodwill
|
|
|
|
1,946
|
|
b. Other intangible assets
|
|
|
|
3,000
|
|
Other assets
|
|
|
|
520,140
|
|
Total assets
|
|
|
|
10,618,287
|
|
CONTINUED ON NEXT PAGE
2
|
|
|
|
|
|
|
|
|
Thousands of dollars
|
|
LIABILITIES
|
|
|
|
|
|
|
|
|
|
|
|
Deposits:
|
|
|
|
|
|
In domestic offices
|
|
|
|
8,039,679
|
|
Noninterest-bearing
|
1,533,462
|
|
|
|
|
Interest-bearing
|
6,506,217
|
|
|
|
|
Federal funds purchased in domestic offices
|
|
|
|
761,500
|
|
Securities sold under agreements to repurchase
|
|
|
|
252,885
|
|
Trading liabilities (from Schedule RC-D)
|
|
|
|
0
|
|
Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases)
|
|
295,564
|
|
Subordinated notes and debentures
|
|
|
|
0
|
|
Other liabilities (from Schedule RC-G)
|
|
|
|
401,360
|
|
Total liabilities
|
|
|
|
9,750,988
|
|
|
|
|
|
|
|
EQUITY CAPITAL
|
|
|
|
|
|
|
|
|
|
|
|
Perpetual preferred stock and related surplus
|
|
|
|
0
|
|
Common Stock
|
|
|
|
500
|
|
Surplus (exclude all surplus related to preferred stock)
|
|
|
|
200,803
|
|
a. Retained earnings
|
|
|
|
755,064
|
|
b. Accumulated other comprehensive income
|
|
|
|
(89,068
|
)
|
Total equity capital
|
|
|
|
867,299
|
|
Total liabilities, minority interest, and equity capital
|
|
|
|
10,618,287
|
|
3