As filed with the Securities and
Exchange Commission on May 26, 2009
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ALLEGHENY TECHNOLOGIES
INCORPORATED
(Exact Name of Registrant as
Specified in its Charter)
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Delaware
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25-1792394
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(State or Other Jurisdiction
of
Incorporation or Organization)
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(I.R.S. Employer
Identification Number)
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1000 Six PPG Place
Pittsburgh, Pennsylvania
15222-5479
412-394-2800
(Address, including Zip Code,
and Telephone Number, including Area Code, of Registrants
Principal Executive Offices)
Jon D. Walton
Executive Vice President, Chief
Legal and
Compliance Officer, General
Counsel and Secretary
Allegheny Technologies
Incorporated
1000 Six PPG Place
Pittsburgh, Pennsylvania
15222-5479
412-394-2800
(Name, Address, including Zip
Code, and Telephone Number, including Area Code, of Agent for
Service)
Copies to:
Ronald D. West
K&L Gates LLP
Henry W. Oliver
Building
535 Smithfield Street
Pittsburgh, Pennsylvania
15222-2312
412-355-6500
412-355-3651
(facsimile)
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective
date of this Registration Statement as determined by the
Registrants.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
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Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2
of the
Exchange Act. (Check one):
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Large
accelerated
filer
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Accelerated
filer
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Non-accelerated
filer
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Smaller reporting
company
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(Do not check if a smaller
reporting company)
CALCULATION
OF REGISTRATION FEE
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Amount to be Registered/
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Proposed Maximum Offering
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Price per Unit/ Proposed
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Maximum Aggregate Offering
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Title of Each Class of
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Price/Amount of
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Securities to be Registered
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Registration Fee(1)
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Debt Securities
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Preferred Stock, $0.10 par value
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Common Stock, $0.10 par value
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Warrants
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Purchase Contracts(2)
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Purchase Units(3)
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Depositary Shares(4)
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(1)
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An indeterminate aggregate initial
offering price or amount of the securities of each identified
class is being registered as may from time to time be offered at
indeterminate prices. Separate consideration may or may not be
received for securities that are issuable upon exercise,
conversion or exchange of other securities or that are issued in
units or represented by depositary shares. In accordance with
Rules 456(b) and 457(r), the registrant is deferring
payment of all of the registration fee.
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(2)
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Each purchase contract will
represent obligations to purchase from the registrant, or sell
to the registrant, common stock, preferred stock, debt
securities, depositary shares or warrants of the registrant, or
debt securities of third parties (including U.S. Treasury
securities), an index or indices thereof or any combination
thereof.
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(3)
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Each unit will be issued under a
unit agreement or indenture and will consist of purchase
contracts together with common stock, preferred stock, debt
securities, depositary shares or warrants of the registrant, or
debt securities of third parties (including U.S. Treasury
securities), securing the holders obligations to purchase
the securities under the purchase contracts, or any of these
securities in any combination.
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(4)
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Each depositary share will be
issued under a deposit agreement, will represent an interest in
a fractional share or multiple shares of preferred stock and
will be evidenced by a depositary receipt.
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PROSPECTUS
Allegheny
Technologies Incorporated
Debt
Securities
Preferred Stock
Common Stock
Warrants
Purchase Contracts
Purchase Units
Depositary Shares
We may offer from time to time, in one or more offerings:
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senior debt securities;
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subordinated debt securities;
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preferred stock;
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common stock;
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warrants to purchase debt securities, preferred stock or common
stock;
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purchase contracts;
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purchase units; or
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depositary shares.
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Our common stock is listed on the New York Stock Exchange under
the symbol ATI.
We will provide the specific terms of any securities we offer in
one or more supplements to this prospectus. The securities may
be offered separately or together in any combination and as
separate series. We may offer and sell these securities to or
through one or more underwriters, dealers or agents, or directly
to purchasers, on a delayed or continuous basis. If any offering
involves underwriters, dealers or agents, arrangements with them
will be described in a prospectus supplement relating to that
offering.
This prospectus describes some of the general terms that may
apply to these securities, the specific terms of any securities
to be offered, and the specific manner in which they may be
offered, will be described in one or more supplements to this
prospectus or in one or more reports which we file with the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended. This prospectus may not be
used to sell securities unless it is accompanied by a prospectus
supplement that contains a description of those securities. You
should read this prospectus and any applicable prospectus
supplement carefully before you invest.
We urge you to read carefully the information included or
incorporated by reference in this prospectus and any applicable
prospectus supplement for a discussion of factors you should
consider before deciding to invest in any securities offered by
this prospectus, including the information under Risk
Factors on page 2 of this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this Prospectus is May 26, 2009.
TABLE OF
CONTENTS
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we have
filed with the Securities and Exchange Commission (the
SEC), using an automatic shelf registration process.
By using a shelf registration statement, we may sell, from time
to time, in one or more offerings, any combination of the
securities described in this prospectus. This prospectus does
not contain all of the information in that registration
statement. For further information about our business and the
securities that may be offered under this prospectus, you should
refer to the registration statement and its exhibits. The
exhibits to the registration statement contain the full text of
certain contracts and other important documents that we have
summarized in this prospectus. Since these summaries may not
contain all the information that you may find important in
deciding whether to purchase the securities we may offer, you
should review the full text of these contracts and documents.
These summaries are qualified in all respects by reference to
all of the provisions contained in the applicable contract or
document. The registration statement and its exhibits can be
obtained from the SEC as indicated under the heading Where
You Can Find More Information.
This prospectus only provides you with a general description of
the securities we may offer. Each time we sell securities, we
will provide a prospectus supplement that contains specific
information about the terms of those securities. The prospectus
supplement may also add, update or change information contained
in this prospectus. You should read this prospectus and any
applicable prospectus supplement together with the additional
information described below under the heading Where You
Can Find More Information.
You should rely only on the information contained or
incorporated by reference in this prospectus and any applicable
prospectus supplement. We have not authorized anyone to provide
you with different information. We are not making an offer to
sell these securities in any jurisdiction where the offer or
sale is not permitted. You should not assume that the
information in this prospectus, any prospectus supplement or any
document incorporated herein by reference is accurate as of any
date other than the date of the applicable document. Our
business, financial condition, results of operations and
prospects may have changed since that date.
WHERE YOU
CAN FIND MORE INFORMATION
Available
Information
We file reports, proxy statements and other information with the
SEC. These reports, proxy statements and other information that
we file with the SEC can be read and copied at the SECs
Public Reference Room at 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
to obtain further
information on the operation of the Public Reference Room. The
SEC maintains an internet site that contains reports, proxy and
information statements and other information regarding issuers
that file electronically with the SEC, including us. The
SECs internet address is
http://www.sec.gov.
In addition, our common stock is listed on the New York Stock
Exchange, and our reports and other information can be inspected
at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005. Our Internet website is
www.alleghenytechnologies.com. Information contained on our
website is not part of, and should not be construed as being
incorporated by reference into, this prospectus.
Incorporation
by Reference
The SEC allows us to incorporate by reference
information that we file with it. This means that we can
disclose important information to you by referring you to other
documents. Any information we incorporate in this manner is
considered part of this prospectus except to the extent updated
and superseded by information contained in this prospectus. Some
information that we file with the SEC after the date of this
prospectus and until we sell all of the securities covered by
this prospectus will automatically update and supersede the
information contained in this prospectus.
We incorporate by reference the following documents that we have
filed with the SEC and any filings that we make with the SEC in
the future under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the Exchange
Act), until we sell all of the securities covered by this
prospectus, including between the date of this prospectus and
the date on which the offering of the securities under this
prospectus is terminated, except as noted in the paragraph below:
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Our SEC Filings (File No. 1-12001)
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Period for or Date of Filing
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Annual Report on
Form 10-K
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Year Ended December 31, 2008
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Quarterly Report on
Form 10-Q
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Quarter Ended March 31, 2009
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Current Reports on
Form 8-K
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January 16, February 24 and April 22, 2009
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Registration Statement on
Form 8-A
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July 30, 1996
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Pursuant to General Instruction B of
Form 8-K,
any information submitted under Item 2.02, Results of
Operations and Financial Condition, or Item 7.01,
Regulation FD Disclosure, of
Form 8-K
is not deemed to be filed for the purpose of
Section 18 of the Exchange Act, and we are not subject to
the liabilities of Section 18 with respect to information
submitted under Item 2.02 or Item 7.01 of
Form 8-K.
We are not incorporating by reference any information submitted
under Item 2.02 or Item 7.01 of
Form 8-K
into any filing under the Securities Act of 1933, as amended
(the Securities Act) or the Exchange Act or into
this prospectus.
Statements contained in prospectus as to the contents of any
contract, agreement or other document referred to in this
prospectus do not purport to be complete, and where reference is
made to the particular provisions of that contract, agreement or
other document, those references are qualified in all respects
by reference to all of the provisions contained in that contract
or other document. For a more complete understanding and
description of each such contract, agreement or other document,
we urge you to read the documents contained in the exhibits to
the registration statement of which the accompanying prospectus
is a part.
Any statement contained in a document incorporated by reference,
or deemed to be incorporated by reference, into this prospectus
will be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained herein,
therein or in any other subsequently filed document which also
is incorporated by reference in this prospectus modifies or
supersedes that statement. Any such statement so modified or
superseded will not be deemed, except as so modified or
superseded, to constitute a part of this prospectus.
We will provide without charge, upon written or oral request, a
copy of any or all of the documents that are incorporated by
reference into this prospectus and a copy of any or all other
contracts, agreements or documents which are referred to in this
prospectus. Requests should be directed to: Allegheny
Technologies Incorporated, 1000 Six PPG Place, Pittsburgh, PA
15222-5479,
Attention: Corporate Secretary; telephone number:
(412) 394-2800.
You also may review a copy of the registration statement and its
exhibits at the SECs Public Reference Room in
Washington, D.C., as well as through the SECs
internet site.
ii
SUMMARY
This summary highlights selected information contained
elsewhere in this prospectus and the documents incorporated by
reference in this prospectus. Because the following is only a
summary, it does not contain all of the information that may be
important to you. You should carefully read this prospectus, any
accompanying prospectus supplement and the documents
incorporated by reference in this prospectus and any
accompanying prospectus supplement before deciding whether to
invest in the notes. References to Allegheny
Technologies, ATI, the Company,
we, our and us and similar
terms means Allegheny Technologies Incorporated and its
subsidiaries, unless the context otherwise requires.
Allegheny
Technologies Incorporated
We are one of the largest and most diversified specialty metals
producers in the world. We use innovative technologies to offer
global markets a wide range of specialty metals solutions. Our
products include titanium and titanium alloys, nickel-based
alloys and superalloys, zirconium, hafnium and niobium,
stainless and specialty steel alloys, grain-oriented electrical
steel, tungsten-based materials and cutting tools, and carbon
alloy impression die forgings and large grey and ductile iron
castings. Our specialty metals are produced in a wide range of
alloys and product forms and are selected for use in
applications that demand metals having exceptional hardness,
toughness, strength, resistance to heat, corrosion or abrasion,
or a combination of these characteristics. Our specialty metals
serve a range of end markets on a global basis, including
aerospace and defense, the chemical process industry and oil and
gas industry, electrical energy and medical device products. Our
common stock is quoted on the New York Stock Exchange under the
symbol ATI. For the year ended December 31,
2008, we generated total sales of approximately
$5.3 billion and net income attributable to ATI of
$565.9 million through three business segments: High
Performance Metals, Flat-Rolled Products and Engineered Products.
Our principal executive offices are located at 1000 Six PPG
Place, Pittsburgh, PA 15222, and our telephone number is (412)
394-2800.
1
RISK
FACTORS
Investing in our securities involves risks. Before deciding to
purchase any of our securities, you should carefully consider
the discussion of risks and uncertainties under the heading
Risk Factors contained in our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008, which is
incorporated by reference in this prospectus, and under similar
headings in our subsequently filed quarterly reports on
Form 10-Q
and annual reports on
Form 10-K,
as well as the other risks and uncertainties described in any
applicable prospectus supplement and in the other documents
incorporated by reference in this prospectus. See the
information under the heading Where You Can Find More
Information for information on how to obtain copies of
documents incorporated by reference in this prospectus. The
risks and uncertainties we discuss in the documents incorporated
by reference in this prospectus are those we currently believe
may materially affect our company. Additional risks and
uncertainties not presently known to us or that we currently
believe are immaterial also may materially and adversely affect
our business, financial condition and results of operations.
FORWARD-LOOKING
STATEMENTS
You should carefully review the information contained in or
incorporated by reference into this prospectus. In this
prospectus, statements that are not reported financial results
or other historical information are forward-looking
statements. Forward-looking statements give current
expectations or forecasts of future events and are not
guarantees of future performance. They are based on our
managements expectations that involve a number of business
risks and uncertainties, any of which could cause actual results
to differ materially from those expressed in or implied by the
forward-looking statements.
You can identify these forward-looking statements by the fact
that they do not relate strictly to historic or current facts.
They use words such as anticipates,
believes, estimates,
expects, would, should,
will, will likely result,
forecast, outlook, projects,
and similar expressions in connection with any discussion of
future operating or financial performance.
We cannot guarantee that any forward-looking statements will be
realized, although we believe that we have been prudent in our
plans and assumptions. Achievement of future results is subject
to risks, uncertainties and assumptions that may prove to be
inaccurate. Among others, the factors discussed in the
Risk Factors section of our Annual Report on
Form 10-K
for our fiscal year ended December 31, 2008 and any of our
subsequently filed Quarterly Reports on
Form 10-Q
could cause actual results to differ from those in
forward-looking statements included in or incorporated by
reference into this prospectus or that we otherwise make. Should
known or unknown risks or uncertainties materialize, or should
underlying assumptions prove to be inaccurate, actual results
could vary materially from those anticipated, estimated or
projected. You should bear this in mind as you consider any
forward-looking statements.
We undertake no obligation to publicly update forward-looking
statements, whether as a result of new information, future
events or otherwise, except as may be required by law. You are
advised, however, to consider any additional disclosures that we
may make on related subjects in future filings with the SEC. You
should understand that it is not possible to predict or identify
all factors that could cause our actual results to differ.
Consequently, you should not consider any list of factors to be
a complete set of all potential risks or uncertainties.
CONSOLIDATED
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of our earnings to
fixed charges for the periods indicated:
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Three Months
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Ended
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Year Ended December 31,
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March 31,
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2004
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2005
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2006
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2007
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2008
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2009
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Ratios of earnings to fixed charges
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1.4
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6.5
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18.1
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25.0
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19.4
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x
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1.8x
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For purposes of calculating the ratio of earnings to fixed
charges, earnings represents income before income
tax provision (benefit) and cumulative effect of change in
accounting principle plus (income) loss
2
recognized on less than fifty percent owned persons plus fixed
charges less capitalized interest. Fixed Charges
consists of interest expense, the portion of rents deemed to be
interest, capitalized interest and amortization of debt expense.
USE OF
PROCEEDS
We intend to use the net proceeds from the sale of the
securities for general corporate purposes unless otherwise
indicated in the applicable prospectus supplement relating to a
specific issuance of securities. Our general corporate purposes
include, but are not limited to, repayment, redemption or
refinancing of debt, capital expenditures, investments in or
loans to subsidiaries and joint ventures, funding of possible
acquisitions, working capital, contributions to one or more of
our pension plans, satisfaction of other obligations and
repurchase of our outstanding equity securities. Pending any
such use, the net proceeds from the sale of the debt securities
may be invested in short-term, investment grade,
interest-bearing instruments. We will include a more detailed
description of the use of proceeds of any specific offering in
the applicable prospectus supplement relating to an offering of
debt securities under this prospectus.
DESCRIPTION
OF DEBT SECURITIES
The following is a general description of the debt securities
that we may offer from time to time under this prospectus. The
particular terms of the debt securities offered under this
prospectus and the extent, if any, to which the general
provisions described below may apply will be described in the
applicable prospectus supplement or in an Exchange Act Report.
Although our securities include securities denominated in
U.S. dollars, we may choose to issue securities in any
other currency, including the euro.
The debt securities will be either senior debt securities or
subordinated debt securities. We will issue the senior debt
securities under a senior indenture between us and a trustee. We
will issue the subordinated debt securities under a subordinated
indenture between us and the same or another trustee. The senior
indenture and the subordinated indenture are collectively
referred to in this prospectus as the indentures, and each of
the trustee under the senior indenture and the trustee under the
subordinated indenture are referred to in this prospectus as the
trustee. Any debt securities issued by us may be guaranteed by
one or more of our subsidiaries.
The following description is only a summary of the material
provisions of the indentures. We urge you to read the
appropriate indenture because it, and not this description,
defines your rights as holders of the applicable debt
securities. See the information under the heading Where
You Can Find More Information for information on how to
obtain a copy of the appropriate indenture. The following
description also is subject to and qualified by reference to the
description of the particular terms of the debt securities and
the relevant indenture described in the related prospectus
supplement, including definitions used in the relevant
indenture. The particular terms of the debt securities that we
may offer under this prospectus and the relevant indenture may
vary from the terms described below.
General
The senior debt securities will be unsubordinated obligations,
will rank equally with all other unsubordinated debt obligations
of ours and, unless otherwise indicated in the related
prospectus supplement or in an Exchange Act Report, will be
unsecured. The subordinated debt securities will be subordinate
in right of payment to any senior debt securities. A description
of the subordinated debt securities is provided below under
Subordinated Debt Securities. The
specific terms of any subordinated debt securities will be
provided in the related prospectus supplement or in an Exchange
Act Report. For a complete understanding of the provisions
pertaining to the subordinated debt securities, you should refer
to the form of subordinated indenture filed as an exhibit to the
Registration Statement of which this prospectus is a part.
Unless we elect or are required to secure the debt securities,
the debt securities will be effectively subordinated to any of
our existing and future secured debt to the extent of the assets
securing that debt.
3
Our primary sources of payment for our payment obligations under
the debt securities will be revenues from our operations and
investments and cash distributions from our subsidiaries. Our
subsidiaries are separate and distinct legal entities and have
no obligation whatsoever to pay any amounts due on debt
securities issued by us or to make funds available to us. Our
subsidiaries ability to pay dividends or make other
payments or advances to us will depend upon their operating
results and will be subject to applicable laws and contractual
restrictions. The indentures do not restrict our subsidiaries
from entering into agreements that prohibit or limit their
ability to pay dividends or make other payments or advances to
us.
To the extent that we must rely on cash from our subsidiaries to
pay amounts due on the debt securities, the debt securities will
be effectively subordinated to all our subsidiaries
liabilities, including their trade payables. This means that our
subsidiaries may be required to pay all of their creditors in
full before their assets are available to us. Even if we are
recognized as a creditor of our subsidiaries, our claims would
be effectively subordinated to any security interests in their
assets and also could be subordinated to some or all other
claims on their assets and earnings.
In addition to the debt securities that we may offer pursuant to
this prospectus, we may issue other debt securities in public or
private offerings from time to time. These other debt securities
may be issued under other indentures or documentation that are
not described in this prospectus, and those debt securities may
contain provisions materially different from the provisions
applicable to one or more issues of debt securities offered
pursuant to this prospectus.
Terms
The indentures will not limit the principal amount of debt,
including unsecured debt, or other securities that we or our
subsidiaries may issue.
We may issue notes or bonds in traditional paper form, or we may
issue a global security. The debt securities of any series may
be issued in definitive form or, if provided in the related
prospectus supplement or in an Exchange Act Report, may be
represented in whole or in part by a global security or
securities, registered in the name of a depositary designated by
us. Each debt security represented by a global security is
referred to as a Book-Entry Security.
Debt securities may be issued from time to time pursuant to this
prospectus and will be offered on terms determined by market
conditions at the time of sale. Debt securities may be issued in
one or more series with the same or various maturities and may
be sold at par, a premium or an original issue discount. Debt
securities sold at an original issue discount may bear no
interest or interest at a rate that is below market rates.
Unless otherwise provided in the related prospectus supplement
or in an Exchange Act Report, debt securities denominated in
U.S. dollars will be issued in denominations of $1,000 and
integral multiples thereof.
Please refer to the related prospectus supplement or Exchange
Act Report for the specific terms of the debt securities
offered, including the following:
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Designation of an aggregate principal amount, purchase price and
denomination;
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Date of maturity;
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If other than U.S. currency, the currency in which the debt
securities may be purchased and the currency in which principal,
premium, if any, and interest will be paid;
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The interest rate or rates and the method of calculating
interest (unless we specify a different method, interest will be
calculated based on a
360-day
year
consisting of
12 30-day
months);
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The date or dates from which the interest will accrue, the
payment dates on which any premium and interest will be payable
or the manner of determination of the payment dates and the
record dates for the determination of holders to whom interest
is payable;
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The place or places where principal, any premium and interest
will be payable;
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Any redemption or sinking fund provisions or other repayment or
repurchase obligations;
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Any index used to determine the amount of payment of principal
of and any premium and interest on the debt securities;
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The application, if any, of the defeasance provisions to the
debt securities;
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If other than the entire principal amount, the portion of the
debt securities that would be payable upon acceleration of the
maturity thereof;
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Whether the debt securities will be issued in whole or in part
in the form of one or more global securities, and in such case,
the depositary for the global securities;
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Whether the debt securities may be converted into or exercised
or exchanged for our common stock, preferred stock, warrants,
other securities, purchase contracts or purchase units and the
terms of such conversion, exercise or exchange, if any;
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Whether the debt securities will be guaranteed by one or more of
our subsidiaries and, if so, the identity of the guarantors;
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Any covenants applicable to the debt securities being offered;
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Any events of default applicable to the debt securities being
offered;
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Any changes to the events of default described in this
prospectus;
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The terms of subordination, if applicable;
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The terms of conversion, if applicable; and
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Any other specific material terms, including any additions to
the terms described in this prospectus and any terms that may be
required by or advisable under applicable law.
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Except with respect to book-entry securities, debt securities
may be presented for exchange or registration of transfer, in
the manner, at the places and subject to the restrictions set
forth in the debt securities and the related prospectus
supplement or Exchange Act Report. Such services will be
provided without charge, other than any tax or other
governmental charge payable in connection therewith, but subject
to the limitations provided in the indentures.
Merger,
Consolidation or Sale of Assets
The Company will not, in a single transaction or through a
series of related transactions, consolidate or merge with or
into any other person, or, directly or indirectly, sell or
convey all or substantially all of its properties and assets to
another person or group of affiliated persons, except that the
Company may consolidate or merge with, or sell or convey
substantially all of its assets to another person if
(i) the Company is the continuing person or the successor
person (if other than the Company) is organized and existing
under the laws of the United States of America, any State
thereof or the District of Columbia and such person expressly
assumes all obligations of the Company under the indenture,
including payment of the principal and interest on the debt
securities, and the performance and observance of all of the
covenants and conditions of the indenture to be performed by the
Company and (ii) there is no default under the indenture.
Upon such a succession, the Company will be relieved from any
further obligations under the indenture.
Events of
Default
Except as otherwise set forth in the applicable prospectus
supplement or in an Exchange Act Report, an event of default
shall occur with respect to any series of debt securities when:
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We default in paying principal of or premium, if any, on any of
the debt securities of such series when due;
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We default in paying interest on the debt securities of such
series when due and such default continues for 30 days;
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We default in making deposits into any sinking fund payment with
respect to any debt security of such series when due and such
default continues for 30 days;
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We fail to perform any other covenant or warranty in the debt
securities of such series or in the applicable indenture, and
such failure continues for a period of 90 days after notice
of such failure as provided in that indenture;
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Certain events of bankruptcy, insolvency, or reorganization
involving us occur; or
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Any other event of default specified in the applicable
prospectus supplement or in an Exchange Act Report occurs with
respect to debt securities of that series.
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We will be required annually to deliver to the trustee
officers certificates stating whether or not the officers
signing such certificates have any knowledge of any default in
the performance by us of our obligations under the applicable
indenture.
If an event of default shall occur and be continuing with
respect to any series (other than an event of default described
in the fifth bullet point of the first paragraph above under
Events of Default), the trustee or the
holders of not less than 25% in principal amount of the debt
securities of such series then outstanding (or, if any
securities of that series are original issue discount
securities, the portion of the principal amount of such
securities as may be specified by the terms thereof) may declare
the debt securities of such series to be immediately due and
payable. If an event of default described in the fifth bullet
point of the first paragraph above under Events of
Default occurs with respect to any series of debt
securities, the principal amount of all debt securities of that
series (or, if any securities of that series are original issue
discount securities, the portion of the principal amount of such
securities as may be specified by the terms thereof) will
automatically become due and payable without any declaration by
the trustee or the holders. The trustee is required to give
holders of the debt securities of any series written notice of a
default with respect to such series as and to the extent
provided by the Trust Indenture Act. As used in this
paragraph, a default means an event described in the
first paragraph under Events of Default
without including any applicable grace period.
If at any time after the debt securities of such series have
been declared due and payable, and before any judgment or decree
for the moneys due has been obtained or entered, we pay or
deposit with the trustee amounts sufficient to pay all matured
installments of interest upon the debt securities of such series
and the principal of all debt securities of such series which
shall have become due, otherwise than by acceleration, together
with interest on such principal and, to the extent legally
enforceable, on such overdue installments of interest and all
other amounts due under the applicable indenture shall have been
paid, and any and all defaults with respect to such series under
that indenture shall have been remedied, then the holders of a
majority in aggregate principal amount of the debt securities of
such series then outstanding, by written notice to us and the
trustee, may rescind and annul the declaration that the debt
securities of such series are due and payable.
In addition, the holders of a majority in aggregate principal
amount of the debt securities of such series may waive any past
default and its consequences with respect to such series, except
a default in the payment of the principal of or any premium or
interest on any debt securities of such series or a default in
the performance of a covenant that cannot be modified under the
applicable indenture without the consent of the holder of each
affected debt security.
The trustee is under no obligation to exercise any of the rights
or powers under the indentures at the request, order or
direction of any of the holders of debt securities, unless such
holders shall have offered to the trustee security or indemnity
satisfactory to the trustee. Subject to such provisions for the
indemnification of the trustee and certain limitations contained
in the indentures, the holders of a majority in aggregate
principal amount of the debt securities of each series at the
time outstanding 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.
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No holder of debt securities of any series will have any right
to institute any proceeding, judicial or otherwise, with respect
to the applicable indenture, for the appointment of a receiver
or trustee or for any other remedy under the indenture unless:
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The holder has previously given written notice to the trustee of
a continuing event of default with respect to the debt
securities of that series; and
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The holders of at least 25% in principal amount of the
outstanding debt securities of that series have made a written
request to the trustee, and offered reasonable indemnity
satisfactory to the trustee, to institute proceedings as
trustee, the trustee has failed to institute the proceedings
within 60 days after its receipt of such notice and the
trustee has not received from the holders of a majority in
principal amount of the debt securities of that series a
direction inconsistent with that request.
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Notwithstanding the foregoing, the holder of any debt security
will have an absolute and unconditional right to receive payment
of the principal of and any premium and, subject to the
provisions of the applicable indenture regarding the payment of
default interest, interest on that debt security on the due
dates expressed in that security and to institute suit for the
enforcement of payment.
Modification
of the Indentures
Each indenture will contain provisions permitting us and the
trustee to modify that indenture or enter into or modify any
supplemental indenture without the consent of the holders of the
debt securities for any of the following purposes:
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to evidence the succession of another corporation to us in
accordance with Merger, Consolidation or Sale of
Assets;
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to add to our covenants further covenants for the benefit or
protection of the holders of any or all series of debt
securities or to surrender any right or power conferred upon us
by that indenture;
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to add any additional events of default with respect to all or
any series of debt securities;
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to add to or change any of the provisions of that indenture to
facilitate the issuance of debt securities in bearer form with
or without coupons, or to permit or facilitate the issuance of
debt securities in uncertificated form;
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to add to, change or eliminate any of the provisions of that
indenture in respect of one or more series of debt securities
thereunder, under certain conditions designed to protect the
rights of any existing holder of those debt securities;
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to secure all or any series of debt securities;
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to establish the forms or terms of the debt securities of any
series;
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to evidence the appointment of a successor trustee and to add to
or change provisions of that indenture necessary to provide for
or facilitate the administration of the trusts under that
indenture by more than one trustee; and
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to cure any ambiguity, to correct or supplement any provision of
that indenture which may be defective or inconsistent with
another provision of that indenture or to change any other
provisions with respect to matters or questions arising under
that indenture, provided that any such action shall not
adversely affect the interests of the holders of any series of
debt securities.
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We and the trustee may otherwise modify each indenture or any
supplemental indenture with the consent of the holders of not
less than a majority in aggregate principal amount of each
series of debt securities affected thereby at the time
outstanding, except that no such modifications shall:
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change the fixed maturity of any debt securities or any
installment of principal, interest or premium on any debt
securities, or reduce the principal amount thereof or reduce the
rate of interest or premium payable upon redemption, or reduce
the amount of principal of an original issue discount debt
security
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or any other debt security that would be due and payable upon a
declaration of acceleration of the maturity thereof, or change
the currency in which the debt securities are payable or impair
the right to institute suit for the enforcement of any payment
after the stated maturity thereof or the redemption date, if
applicable, or adversely affect any right of the holder of any
debt security to require us to repay or repurchase that
security, without the consent of the holder of each debt
security so affected;
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reduce the percentage of debt securities of any series, the
consent of the holders of which is required for any waiver or
supplemental indenture, without the consent of the holders of
all debt securities affected thereby then outstanding;
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modify the provisions of that indenture relating to the waiver
of past defaults or the waiver or certain covenants or the
provisions described above, except to increase any percentage
set forth in those provisions or to provide that other
provisions of that indenture may not be modified without the
consent of the holder of each debt security affected thereby,
without the consent of the holder of each debt security affected
thereby;
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change any obligation of ours to maintain an office or agency;
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change any obligation of ours to pay additional amounts;
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adversely affect any right of repayment or repurchase at the
option of the holder; or
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reduce or postpone any sinking fund or similar provision.
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With respect to any vote of holders of a series of debt
securities, we generally will be entitled to set any date as a
record date for the purpose of determining the holders of
outstanding debt securities that are entitled to vote or take
other action under the indenture.
Satisfaction
and Discharge, Defeasance and Covenant Defeasance
Except as otherwise specified in the applicable prospectus
supplement or in an Exchange Act report, each indenture shall be
satisfied and discharged if (i) we shall deliver to the
trustee all debt securities then outstanding for cancellation or
(ii) all debt securities not delivered to the trustee for
cancellation shall have become due and payable, are to become
due and payable within one year or are to be called for
redemption within one year and we shall deposit an amount
sufficient to pay the principal, premium, if any, and interest
to the date of maturity, redemption or deposit (in the case of
debt securities that have become due and payable), provided that
in either case we shall have paid all other sums payable under
that indenture.
Each indenture will provide, if such provision is made
applicable to the debt securities of a series, that we may elect
either (A) to defease and be discharged from any and all
obligations with respect to any debt security of such series, or
defeasance, or (B) to be released from our
obligations with respect to such debt security under certain of
the covenants and events of default under that indenture
together with additional covenants that may be included for a
particular series and that certain events of default shall
not be events of default under that indenture with respect to
such series (covenant defeasance), upon the deposit
with the trustee (or other qualifying trustee), in trust for
such purpose, of money or certain U.S. government
obligations which through the payment of principal and interest
in accordance with their terms will provide money, in an amount
sufficient to pay the principal of (and premium, if any) and
interest on such debt security, on the scheduled due dates.
In the case of defeasance or covenant defeasance, the holders of
such debt securities will be entitled to receive payments in
respect of such debt securities solely from such trust. Such a
trust may only be established if, among other things, we have
delivered to the trustee an opinion of counsel (as specified in
the indentures) to the effect that the holders of the debt
securities affected thereby will not recognize income, gain or
loss for Federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance or
covenant defeasance had not occurred. Such opinion of counsel,
in the case of defeasance under clause (A) above, must
refer to and be based upon a ruling of the Internal Revenue
Service or a change in applicable Federal income tax law
occurring after the date of the applicable indenture.
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Record
Dates
The indentures will provide that in certain circumstances we may
establish a record date for determining the holders of
outstanding debt securities of a series entitled to join in the
giving of notice or the taking of other action under the
applicable indenture by the holders of the debt securities of
such series.
Subordinated
Debt Securities
Subordinated debt securities will be subordinate, in right of
payment, to all senior debt. Senior debt is defined to mean,
with respect to us, the principal, premium, if any, interest,
fees, charges, expenses, reimbursement obligations, guarantees
and other amounts owing on the following:
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all indebtedness of ours, whether outstanding on the date of
issuance or thereafter created, incurred or assumed, which is
for money borrowed, or evidenced by a note or similar instrument
given in connection with the acquisition of any business,
properties or assets, including securities;
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any indebtedness of others of the kinds described in the
preceding clause for the payment of which we are responsible or
liable (directly or indirectly, contingently or otherwise) as
guarantor or otherwise; and
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amendments, renewals, extensions and refundings of any
indebtedness described above, unless in any instrument or
instruments evidencing or securing such indebtedness or pursuant
to which the same is outstanding, or in any such amendment,
renewal, extension or refunding, it provides that such
indebtedness is not senior or prior in right of payment to the
subordinated debt securities.
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Upon any distribution of our assets upon our dissolution,
winding up, liquidation or reorganization, the payment of the
principal of, premium, if any, and interest, if any, on the
subordinated debt securities will be subordinated, to the extent
provided in the subordinated debt indenture, in right of payment
to the prior payment in full of all of our senior debt. Our
obligation to make payment of the principal of, premium, if any,
and interest, if any, on the subordinated debt securities will
not otherwise be affected. In addition, no payment on account of
principal and premium, if any, sinking fund or interest, if any,
may be made on the subordinated debt securities at any time
unless full payment of all amounts due in respect of the
principal and premium, if any, sinking fund and interest, if
any, on our senior debt has been made or duly provided for in
money or moneys worth.
Notwithstanding the foregoing, unless all of our senior debt has
been paid in full, in the event that any payment or distribution
made by us is received by the trustee or the holders of any of
the subordinated debt securities, such payment or distribution
must be paid over to the holders of our senior debt or a person
acting on their behalf, to be applied toward the payment of all
our senior debt remaining unpaid until all the senior debt has
been paid in full. Subject to the payment in full of all of our
senior debt, the rights of the holders of our subordinated debt
securities will be subrogated to the rights of the holders of
our senior debt.
By reason of this subordination, in the event of a distribution
of our assets upon our insolvency, certain of our general
creditors may recover more, ratably, than holders of our
subordinated debt securities.
Governing
Law
The laws of the State of New York will govern each indenture and
will govern the debt securities.
Street
Name and Other Indirect Holders
Investors who hold securities in accounts at banks or brokers
generally will not be recognized by us as legal holders of debt
securities. This is called holding in street name.
Instead, we would recognize only the bank or broker, or the
financial institution that the bank or broker uses to hold its
securities. These intermediary banks, brokers and other
financial institutions pass along principal, interest and other
payments on the debt securities, either because they agree to do
so in their customer agreements or because they are
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legally required to do so. If you hold debt securities in
street name, you should check with your own
institution to find out, among other things:
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how it handles payments and notices;
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whether it imposes fees or charges;
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how it would handle voting if applicable;
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whether and how you can instruct it to send you debt securities
registered in your own name so you can be a direct holder as
described below; and
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if applicable, how it would pursue rights under your debt
securities if there were a default or other event triggering the
need for holders to act to protect their interests.
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Our obligations, as well as the obligations of the trustee under
the indentures and those of any third parties employed by us or
the trustee under either of the indentures, run only to persons
who are registered as holders of debt securities issued under
the applicable indenture. As noted above, we do not have
obligations to you if you hold in street name or
other indirect means, either because you choose to hold debt
securities in that manner or because the debt securities are
issued in the form of global securities as described below. For
example, once we make payment to the registered holder, we have
no further responsibility for the payment even if that holder is
legally required to pass the payment along to you as a
street name customer but does not do so.
Book-Entry
Securities
The following description of book-entry securities will apply to
any series of debt securities issued in whole or in part in the
form of one or more global securities except as otherwise
described in the related prospectus supplement or in an Exchange
Act Report.
Book-entry securities of like tenor and having the same date
will be represented by one or more global securities deposited
with and registered in the name of a depositary that is a
clearing agent registered under the Exchange Act. Beneficial
interests in book-entry securities will be limited to
institutions that have accounts with the depositary, or
participants, or persons that may hold interests
through participants.
Ownership of beneficial interests by participants will only be
evidenced by, and the transfer of that ownership interest will
only be effected through, records maintained by the depositary.
Ownership of beneficial interests by persons that hold through
participants will only be evidenced by, and the transfer of that
ownership interest within such participant will only be effected
through, records maintained by the participants. The laws of
some jurisdictions require that certain purchasers of securities
take physical delivery of such securities in definitive form.
Such laws may impair the ability to transfer beneficial
interests in a global security.
Payment of principal of and any premium and interest on
book-entry securities represented by a global security
registered in the name of or held by a depositary will be made
to the depositary, as the registered owner of the global
security. Neither we, the trustee nor any agent of ours or the
trustee will have any responsibility or liability for any aspect
of the depositarys records or any participants
records relating to or payments made on account of beneficial
ownership interests in a global security or for maintaining,
supervising or reviewing any of the depositarys records or
any participants records relating to the beneficial
ownership interests. Payments by participants to owners of
beneficial interests in a global security held through such
participants will be governed by the depositarys
procedures, as is now the case with securities held for the
accounts of customers registered in street name, and
will be the sole responsibility of such participants.
A global security representing a book-entry security is
exchangeable for definitive debt securities in registered form,
of like tenor and of an equal aggregate principal amount
registered in the name of, or is transferable in whole or in
part to, a person other than the depositary for that global
security, only if (a) the depositary notifies us that it is
unwilling or unable to continue as depositary for that global
security and we do not appoint a successor depositary within
90 days after receiving that notice, (b) at any time
the depositary ceases to be a clearing agency registered under
the Exchange Act and we do not appoint a successor
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depositary within 90 days after becoming aware that the
depositary has ceased to be registered as a clearing agency,
(c) we in our sole discretion determine that that the
global security is so transferable or will be exchangeable for
definitive securities in registered form and, in each case,
notify the trustee of our decision, (d) an event of default
with respect to the debt securities of that series has occurred
and is continuing or (e) other circumstances exist that
have been specified in the terms of the debt securities of that
series. Any global security that is exchangeable pursuant to the
preceding sentence shall be registered in the name or names of
such person or persons as the depositary shall instruct the
trustee. It is expected that such instructions may be based upon
directions received by the depositary from its participants with
respect to ownership of beneficial interests in such global
security.
Except as provided above, owners of beneficial interests in a
global security will not be entitled to receive physical
delivery of debt securities in definitive form and will not be
considered the holders thereof for any purpose under the
indentures, and no global security shall be exchangeable, except
for a security registered in the name of the depositary. This
means each person owning a beneficial interest in such global
security must rely on the procedures of the depositary and, if
such person is not a participant, on the procedures of the
participant through which such person owns its interest, to
exercise any rights of a holder under the indentures. We
understand that under existing industry practices, if we request
any action of holders or an owner of a beneficial interest in
such global security desires to give or take any action that a
holder is entitled to give or take under the indentures, the
depositary would authorize the participants holding the relevant
beneficial interests to give or take such action, and such
participants would authorize beneficial owners owning through
such participant to give or take such action or would otherwise
act upon the instructions of beneficial owners owning through
them.
DESCRIPTION
OF OTHER SECURITIES
We will set forth in the applicable prospectus supplement a
description of any warrants, purchase contracts, units or
depositary shares that may be offered pursuant to this
prospectus.
DESCRIPTION
OF CAPITAL STOCK
Common
Stock
We may issue, either separately or together with other
securities, including as a part of units, shares of our common
stock. Shares of common stock issued as part of units may be
attached to or separate from any other securities part of those
units. Under our Restated Certificate of Incorporation, we are
authorized to issue up to 500,000,000 shares of our common
stock. As of April 28, 2009, we have 98,017,737 shares
of common stock issued and outstanding and have reserved
2,338,720 additional shares of common stock for issuance
under our stock compensation plans.
A prospectus supplement relating to an offering of common stock
or other securities convertible or exchangeable for, or
exercisable into, common stock, or the settlement of which may
result in the issuance of common stock, will describe the
relevant terms, including the number of shares offered, any
initial offering price and market price and dividend
information, as well as, if applicable, information on other
related securities.
The following summary is not complete and is not intended to
give full effect to provisions of statutory or common law. You
should refer to the applicable provisions of the following:
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the Delaware General Corporation Law, as it may be amended from
time to time;
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our Restated Certificate of Incorporation, as it may be amended
or restated from time to time; and
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our Bylaws, as they may be amended or restated from time to time.
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Dividends.
The holders of our common stock are
entitled to receive dividends when, as and if declared by our
board of directors, out of funds legally available for their
payment subject to the rights of holders of our preferred stock.
Voting Rights.
The holders of our common stock
are entitled to one vote per share on all matters submitted to a
vote of stockholders.
Rights upon Liquidation.
In the event of our
voluntary or involuntary liquidation, dissolution or winding up,
the holders of common stock will be entitled to share equally in
any of our assets available for distribution after the payment
in full of all debts and distributions and after the holders of
all series of our outstanding preferred stock have received
their liquidation preferences in full.
Miscellaneous.
The outstanding shares of
common stock are fully paid and nonassessable. The holders of
common stock are not entitled to preemptive or redemption
rights. Shares of common stock are not convertible into shares
of any other class of capital stock. Mellon Investor Services
LLC is the transfer agent and registrar for the common stock.
Preferred
Stock
We may elect to issue shares of our preferred stock from time to
time, as described in the applicable prospectus supplement. We
may issue shares of preferred stock separately or as a part of
units, and any such shares issued as part of units may be
attached to or separate from any other securities part of those
units. Shares of our preferred stock may have dividend,
redemption, voting and liquidation rights taking priority over
our common stock, and shares of our preferred stock may be
convertible into our common stock.
Our Board of Directors is authorized, subject to any limitations
prescribed by law, to provide for the issuance of shares of
preferred stock in one or more series. In addition, our Board of
Directors is authorized to establish from time to time the
number of shares to be included in each series of preferred
stock and to fix the designation, powers (including but not
limited to voting powers, if any), preferences and rights of the
shares of each series of preferred stock and any qualifications,
limitations or restrictions of each series of preferred stock.
The number of authorized shares of preferred stock may be
increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders
of a majority of the outstanding common stock, without a vote of
the holders of the preferred stock, or of any series of
preferred stock, unless a vote of any such holders is required
pursuant to the terms of any preferred stock.
Our Restated Certificate of Incorporation authorizes our Board
of Directors without further stockholder action, to provide for
the issuance of up to 50,000,000 shares of preferred stock,
in one or more series. As of the date of this prospectus, no
shares of preferred stock have been issued. We have
6,000,000 shares of preferred designated as Series A
Junior Participating Preferred Stock in connection with our
prior rights agreement, leaving 44,000,000 shares of
preferred stock remaining available for designation and issuance.
The particular terms of any series of preferred stock being
offered by us under this prospectus will be described in the
prospectus supplement relating to that series of preferred
stock. Those terms may include:
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the title and liquidation preference per share of the preferred
stock and
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the number of shares offered;
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the purchase price of the preferred stock;
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the dividend rate (or method of calculation), the dates on which
dividends will be paid and the date from which dividends will
begin to accumulate;
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any redemption or sinking fund provisions of the preferred stock;
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any conversion provisions of the preferred stock;
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12
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the voting rights, if any, of the preferred stock; and
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any additional dividend, liquidation, redemption, sinking fund
and other rights, preferences, privileges, limitations and
restrictions of the preferred stock.
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If the terms of any series of preferred stock being offered
differ from the terms set forth in this prospectus, the
definitive terms will be disclosed in the applicable prospectus
supplement. The summary in this prospectus is not complete. You
should refer to the applicable Certificate of Amendment to our
Restated Certificate of Incorporation or certificate of
designations, as the case may be, establishing a particular
series of preferred stock, in either case which will be filed
with the Secretary of State of the State of Delaware and the SEC
in connection with an offering of preferred stock.
The preferred stock will, when issued, be fully paid and
nonassessable.
Dividend Rights.
The preferred stock will be
preferred over our common stock as to payment of dividends.
Before any dividends or distributions (other than dividends or
distributions payable in common stock) on our common stock will
be declared and set apart for payment or paid, the holders of
shares of each series of preferred stock will be entitled to
receive dividends when, as and if declared by our board of
directors. We will pay those dividends either in cash, shares of
common stock or preferred stock or otherwise, at the rate and on
the date or dates set forth in the applicable prospectus
supplement. With respect to each series of preferred stock, the
dividends on each share of the series will be cumulative from
the date of issue of the share unless another date is set forth
in the applicable prospectus supplement relating to the series.
Accruals of dividends will not bear interest.
Rights upon Liquidation.
The preferred stock
will be preferred over our common stock as to assets so that the
holders of each series of preferred stock will be entitled to be
paid, upon our voluntary or involuntary liquidation, dissolution
or winding up and before any distribution is made to the holders
of common stock, the amount set forth in the applicable
prospectus supplement. However, in this case the holders of
preferred stock will not be entitled to any other or further
payment. If upon any liquidation, dissolution or winding up our
net assets are insufficient to permit the payment in full of the
respective amounts to which the holders of all outstanding
preferred stock are entitled, our entire remaining net assets
will be distributed among the holders of each series of
preferred stock in amounts proportional to the full amounts to
which the holders of each series are entitled.
Redemption.
All shares of any series of
preferred stock will be redeemable to the extent set forth in
the prospectus supplement relating to the series. All shares of
any series of preferred stock will be convertible into shares of
our common stock or into shares of any other series of our
preferred stock to the extent set forth in the applicable
prospectus supplement.
Voting Rights.
Except as indicated in the
applicable prospectus supplement, the holders of preferred stock
will be entitled to one vote for each share of preferred stock
held by them on all matters properly presented to stockholders.
The holders of common stock and the holders of all series of
preferred stock will vote together as one class.
Additional Series of Preferred Stock.
In the
event of a proposed merger or tender offer, proxy contest or
other attempt to gain control of us and not approved by our
board of directors, it would be possible for the board to
authorize the issuance of one or more series of preferred stock
with voting rights or other rights and preferences which would
impede the success of the proposed merger, tender offer, proxy
contest or other attempt to gain control of us. This authority
may be limited by applicable law, our Restated Certificate of
Incorporation, as it may amended or restated from time to time,
and the applicable rules of the stock exchanges upon which the
common stock is listed. The consent of our stockholders would
not be required for any such issuance of preferred stock.
13
Special Charter Provisions.
Our Restated
Certificate of Incorporate provides that:
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our Board of Directors is classified into three classes;
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in addition to the requirements of law and the other provisions
of our Restated Certificate of Incorporation, the affirmative
vote of at least two-thirds of the outstanding shares of our
common stock is required for the adoption or authorization of
any of the following events unless the event has been approved
at a meeting of our Board of Directors by the vote of more than
two-thirds of the incumbent members of our Board of Directors:
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any merger or consolidation of us with or into any other
corporation;
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any sale, lease, exchange, transfer or other disposition, but
excluding a mortgage or any other security device, of all or
substantially all of our assets;
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any merger or consolidation of a Significant Shareholder (as
defined in our Restated Certificate of Incorporation) with or
into us or a direct or indirect subsidiary of ours;
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any sale, lease, exchange, transfer or other disposition to us
or to a direct or indirect subsidiary of ours of any of our
common stock held by a Significant Shareholder or any other
assets of a Significant Shareholder which, if included with all
other dispositions consummated during the same fiscal year of
ours by the same Significant Shareholder, would result in
dispositions of assets having an aggregate fair value in excess
of five percent of our total consolidated assets as shown on our
certified balance sheet as of the end of the fiscal year
preceding the proposed disposition;
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any reclassification of our common stock, or any
re-capitalization involving our common stock, consummated within
five years after a Significant Shareholder becomes a Significant
Shareholder, whereby the number of outstanding shares of common
stock is reduced or any of those shares are converted into or
exchanged for cash or other securities;
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any dissolution; and
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any agreement, contract or other arrangement providing for any
of these transactions but notwithstanding anything not including
any merger pursuant to the Delaware General Corporation Law, as
amended from time to time, which does not require a vote of our
stockholders for approval;
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our stockholders may not adopt, amend or repeal our Amended and
Restated Bylaws other than by the affirmative vote of 75% of the
combined voting power of all of our outstanding voting
securities entitled to vote generally in an election of
directors, voting together as a single class;
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any action required or permitted to be taken by our stockholders
must be effected at a duly called annual or special meeting of
stockholders and may not be effected by the written consent of
the stockholders; and
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special meetings of the stockholders may be called at any time
by a majority of our directors and may not be called by any
other person or persons or in any other manner.
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PLAN OF
DISTRIBUTION
We may sell the securities in one or more of the following ways:
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to underwriters, whether or not part of a syndicate, for public
offering and sale by them;
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directly to purchasers in negotiated sales or in competitively
bid transactions;
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through agents;
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through dealers; or
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through a combination of any of the above methods of sale.
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14
Offers to purchase securities may be solicited directly by us or
by agents designated by us from time to time. Any agent, who may
be deemed to be an underwriter, as that term is defined in the
Securities Act, involved in the offer and sale of the securities
will be named, and any commissions payable by us to that agent
will be provided, in an applicable prospectus supplement. We and
our agents may sell the securities at:
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a fixed price or prices, which may be changed;
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market prices prevailing at the time of sale;
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prices related to such prevailing market prices; or
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negotiated prices.
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Underwriters, dealers and agents participating in the
distribution of the securities may be deemed to be underwriters,
and any discounts and commissions received by them and any
profit realized by them on resale of the securities may be
deemed to be underwriting discounts and commissions under the
Securities Act. Underwriters, dealers and agents may be
entitled, under agreements with us, to indemnification against
and contribution toward certain civil liabilities, including
liabilities under the Securities Act, and to reimbursement by us
for certain expenses. Unless otherwise described in an
applicable prospectus supplement, the obligations of the
underwriters to purchase offered securities will be subject to
conditions, and the underwriters must purchase all of the
offered securities if any are purchased.
If an underwriter or underwriters are used in the offer or sale
of securities, we will execute an underwriting agreement with
the underwriters at the time of sale of the securities to the
underwriters, and the names of the underwriters and the
principal terms of our agreements with the underwriters will be
provided in an applicable prospectus supplement.
The securities subject to the underwriting agreement may be
acquired by the underwriters for their own account and may be
resold by them from time to time in one or more transactions,
including negotiated transactions, at a fixed offering price or
at varying prices determined at the time of sale. Underwriters
may be deemed to have received compensation from us in the form
of underwriting discounts or commissions and may also receive
commissions from the purchasers of these securities for whom
they may act as agent. Underwriters may sell these securities to
or through dealers. These dealers may receive compensation in
the form of discounts, concessions or commissions from the
underwriters and commissions from the purchasers for whom they
may act as agent. Any initial offering price and any discounts
or concessions allowed or re-allowed or paid to dealers may be
changed from time to time.
In connection with underwritten offerings of the securities, the
underwriters may engage in over-allotment, stabilizing
transactions, covering transactions and penalty bids in
accordance with Regulation M under the Exchange Act, as
follows:
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Over-allotment transactions involve sales in excess of the
offering size, which create a short position for the
underwriters;
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Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a
specified maximum;
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Covering transactions involve purchases of the securities in the
open market after the distribution has been completed in order
to cover short positions; and
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Penalty bids permit the underwriters to reclaim a selling
concession from a broker/dealer when the securities originally
sold by that broker-dealer are repurchased in a covering
transaction to cover short positions.
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These stabilizing transactions, covering transactions and
penalty bids may cause the price of the securities to be higher
than it otherwise would be in the absence of these transactions.
If these transactions occur, they may be discontinued at any
time.
15
If indicated in an applicable prospectus supplement, we will
authorize dealers acting as agents for us to solicit offers by
certain institutions to purchase securities from us at the
public offering price set forth in the prospectus supplement
under delayed delivery contracts providing for payment and
delivery on the date or dates stated in the prospectus
supplement. The identity of any such agents, the terms of such
delayed delivery contracts and the commissions payable by us to
these agents will be set forth in an applicable prospectus
supplement.
If indicated in an applicable prospectus supplement, we may sell
shares of our common stock under a newly established direct
stock purchase and dividend reinvestment plan. The terms of any
such plan will be set forth in the applicable prospectus
supplement.
Each underwriter, dealer and agent participating in the
distribution of any of the securities that are issuable in
bearer form will agree that it will not offer, sell or deliver,
directly or indirectly, securities in bearer form in the United
States or to U.S. persons, other than qualifying financial
institutions, during the restricted period, as defined in
U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7).
Except for shares of our common stock or as otherwise described
in an applicable prospectus supplement, all of the securities
will be a new issue of securities with no established trading
market. Any underwriters to whom or agents through whom the
securities are sold by us for public offering and sale may make
a market in the securities, but such underwriters or agents will
not be obligated to do so and may discontinue any market making
at any time without notice. No assurance can be given as to the
liquidity of the trading market for any such securities.
Certain of the underwriters, dealers or agents and their
associates may be customers of, engage in transactions with and
perform services for us and our subsidiaries in the ordinary
course of business.
LEGAL
MATTERS
Unless otherwise indicated in the applicable prospectus
supplement, the validity of the securities offered by us will be
passed upon for us by Jon D. Walton, Executive Vice President,
Human Resources, Chief Legal and Compliance Officer, General
Counsel and Corporate Secretary of Allegheny Technologies
Incorporated, or by K&L Gates LLP, Pittsburgh,
Pennsylvania. Mr. Walton is paid a salary by Allegheny
Technologies Incorporated, is a participant in various employee
benefit plans offered to its employees, and beneficially owns,
or has rights to acquire, an aggregate of less than one percent
of the shares of our common stock.
EXPERTS
The consolidated financial statements of Allegheny Technologies
Incorporated (ATI) appearing in Allegheny Technologies
Incorporateds Annual Report
(Form 10-K)
for the year ended December 31, 2008 and ATIs
effectiveness of internal control over financial reporting as of
December 31, 2008 have been audited by Ernst &
Young LLP, independent registered public accounting firm, as set
forth in their reports thereon, included therein, and
incorporated herein by reference. Such consolidated financial
statements and ATIs effectiveness of internal control over
financial reporting as of December 31, 2008 are
incorporated herein by reference in reliance upon such reports
given on the authority of such firm as experts in accounting and
auditing.
16
PART II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution
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The expenses (other than underwriting compensation) to be
incurred by the registrant in connection with the issuance and
distribution of the securities being registered under this
registration statement are:
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Securities and Exchange Commission Registration Fee
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$ *
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Trustees Fees and Expenses
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**
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Accounting Fees and Expenses
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**
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Printing and Engraving expenses
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**
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Rating Agency Fees
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**
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Legal Fees and Expenses
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**
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Miscellaneous
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**
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Total
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$ **
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*
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Deferred in accordance with Rules 456(b) and 457(r) of the
Securities Act of 1933, as amended.
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**
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Estimated expenses are not presently known. The foregoing sets
forth the general categories of expenses (other than
underwriting discounts and commissions) that we anticipate we
will incur in connection with the offering of securities under
this registration statement. Information regarding estimated
expenses of issuance and distribution of each identified class
of securities being registered will be provided at the time
information as to such class is included in a prospectus
supplement in accordance with Rule 430B.
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Item 15.
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Indemnification
of Directors and Officers
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Section 102(b)(7) of the Delaware General Corporation Law
(the DGCL) permits a corporation, in its certificate
of incorporation, to limit or eliminate, subject to certain
statutory limitations, the liability of directors to the
corporation or its stockholders for monetary damages for
breaches of fiduciary duty, except for liability (a) for
any breach of the directors duty of loyalty to the
corporation or its stockholders, (b) for acts or omissions
not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the
DGCL or (d) for any transaction from which the director
derived an improper personal benefit. Our Restated Certificate
of Incorporation provides, among other things, that the personal
liability of our directors is so eliminated.
Under Section 145 of the DGCL, a corporation has the power
to indemnify directors and officers under certain prescribed
circumstances and subject to certain limitations against certain
costs and expenses, including attorneys fees actually and
reasonably incurred in connection with any action, suit or
proceeding, whether civil, criminal, administrative or
investigative, to which any of them is a party by reason of his
being a director or officer of the corporation if it is
determined that he acted in accordance with the applicable
standard of conduct set forth in such statutory provision. Our
Bylaws, as amended, provide that we will indemnify any person
who may be involved, as a party or otherwise, in a claim,
action, suit or proceeding (other than any claim, action, suit
or proceeding brought by or in the right of Allegheny
Technologies Incorporated) by reason of the fact that such
person is or was a director or officer, or is or was serving at
the request of us as a director or officer of any other
corporation or entity, against certain liabilities, costs and
expenses. We are also authorized to maintain insurance on behalf
of any person who is or was a director or officer, or is or was
serving at the request of us as a director or officer of any
other corporation or entity, against any liability asserted
against such person and incurred by such person in any such
capacity or arising out of his status as such, whether or not we
would have the power to indemnify such person against such
liability under the DGCL. We are a party to agreements with our
directors and officers pursuant to which we have agreed to
indemnify them against certain costs and expenses incurred by
them in their capacities as such.
II-1
See Exhibit Index attached hereto and incorporated herein
by reference.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933, as amended;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however
, that paragraphs (i), (ii) and
(iii) do not apply if the registration statement is on
Form S-3
and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933, as amended, to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii) or (x) for
the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933, as amended,
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus
is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective
date of the registration
II-2
statement relating to the securities in the registration
statement to which the prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof;
provided, however
, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933, as amended, to any
purchaser in the initial distribution of the securities, each of
the undersigned registrant undertakes that in a primary offering
of securities of such undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, such undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of such
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of such undersigned registrant or used
or referred to by such undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
such undersigned registrant or its securities provided by or on
behalf of such undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by such undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability under
the Securities Act of 1933, as amended, each filing of Allegheny
Technologies Incorporateds annual report pursuant to
Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934, as amended (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of 1934, as
amended), that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(7) To file an application for the purpose of determining
the eligibility of the trustee to act under subsection (a)
of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the
Commission under Section 305(6)(2) of the
Trust Indenture Act.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to
directors, officers and controlling persons of each registrant
pursuant to the provisions described in Item 15 above, or
otherwise, each registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act of
1933, as amended, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by a registrant of expenses incurred or paid by
a director, officer or controlling person of a registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, that registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933, as amended, and will be governed by
the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Allegheny Technologies Incorporated certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Pittsburgh, Commonwealth of Pennsylvania, on the
26
th
day
of May, 2009.
ALLEGHENY TECHNOLOGIES INCORPORATED
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By:
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/s/ Richard
J. Harshman
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Name: Richard J. Harshman
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Title:
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Executive Vice President, Finance and
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Chief Financial Officer
POWER OF
ATTORNEY
Each of the undersigned directors and officers of Allegheny
Technologies Incorporated, a Delaware corporation, do hereby
constitute and appoint Richard J. Harshman and Jon D. Walton, or
either one of them, the undersigneds true and lawful
attorneys and agents, with full power of substitution and
resubstitution in each, to do any and all acts and things in our
name and on our behalf in our capacities as directors and
officers and to execute any and all instruments for us and in
our names in the capacities indicated below, which said
attorneys and agents, or either one of them, may deem necessary
or advisable to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules, regulations
and requirements of the Securities and Exchange Commission, in
connection with this registration statement, including
specifically, but without limitation, power and authority to
sign for us or any of us in our names in the capacities
indicated below, any and all amendments (including
post-effective amendments) hereto and each of the undersigned
does hereby ratify and confirm all that said attorneys and
agents, or either one of them or any substitute, shall do or
cause to be done by virtue hereof. This Power of Attorney may be
executed in any number of counterparts.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ L.
Patrick Hassey
L.
Patrick Hassey
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Chairman, President and Chief Executive Officer (Principal
Executive Officer)
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May 26, 2009
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/s/ Richard
J. Harshman
Richard
J. Harshman
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Executive Vice President, Finance and
Chief Financial Officer
(Principal Financial Officer)
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May 26, 2009
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/s/ Dale
G. Reid
Dale
G. Reid
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Vice President, Controller,
Chief Accounting Officer and Treasurer
(Principal Accounting Officer)
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May 26, 2009
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/s/ Diane
C. Creel
Diane
C. Creel
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Director
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May 26, 2009
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/s/ James
C. Diggs
James
C. Diggs
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Director
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May 26, 2009
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II-4
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Signature
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Title
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Date
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/s/ J.
Brett Harvey
J.
Brett Harvey
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Director
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May 26, 2009
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/s/ Barbara
S. Jeremiah
Barbara
S. Jeremiah
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Director
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May 26, 2009
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/s/ Michael
J. Joyce
Michael
J. Joyce
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Director
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May 26, 2009
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/s/ James
E. Rohr
James
E. Rohr
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Director
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May 26, 2009
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/s/ Louis
J. Thomas
Louis
J. Thomas
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Director
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May 26, 2009
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/s/ John
D. Turner
John
D. Turner
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Director
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May 26, 2009
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II-5
EXHIBIT INDEX
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Exhibit
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Number
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Description
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*1
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.1
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Form of Underwriting Agreement.
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*1
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.2
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Form of Distribution Agreement.
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4
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.1
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|
Indenture dated as of December 18, 2001 between Allegheny
Technologies Incorporated and The Bank of New York, as trustee
(incorporated by reference to Exhibit 4.2 to the
Registrants Annual Report on
Form 10-K
for the year ended December 31, 2001 (File
No. 1-12001)).
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4
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.2
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Form of 8.375% Notes due 2011 (included as part of
Exhibit 4.2).
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4
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.3
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|
Indenture dated as of December 15, 1995 between Allegheny
Ludlum Corporation and The Chase Manhattan Bank (National
Association), as trustee (incorporated by reference to
Exhibit 4(a) to Allegheny Ludlum Corporations Annual
Report on
Form 10-K
for the year ended December 31, 1995 (File
No. 1-9498)),
and First Supplemental Indenture by and among Allegheny
Technologies Incorporated, Allegheny Ludlum Corporation and The
Chase Manhattan Bank (National Association), as Trustee, dated
as of August 15, 1996 (incorporated by reference to
Exhibit 4.1 to the Registrants Current Report on
Form 8-K
dated August 15, 1996 (File
No. 1-12001)).
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4
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.4
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Form of 6.95% Debentures due 2025 (included as part of
Exhibit 4.3).
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+4
|
.5
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Form of Senior Debt Indenture.
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+4
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.6
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|
Form of Subordinated Debt Indenture.
|
|
4
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.7
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|
Form of Senior Debt Security (included in Exhibit 4.5).
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4
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.8
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Form of Subordinated Debt Security (included in
Exhibit 4.6).
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*4
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.9
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Form of Warrant Agreement.
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*4
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.10
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Form of Warrant Certificate.
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*4
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.11
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Form of Purchase Contract Agreement.
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*4
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.12
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|
Form of Purchase Contract Security.
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*4
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.13
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|
Form of Purchase Unit Agreement.
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|
*4
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.14
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|
Form of Purchase Unit Certificate.
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*4
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.15
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Form of Deposit Agreement.
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*4
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.17
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|
Form of Depositary Receipt.
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*4
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.18
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|
Form of Certificate of Common Stock.
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*4
|
.19
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|
Form of Certificate of Preferred Stock.
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|
+5
|
.1
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|
Opinion of K&L Gates LLP.
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+12
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.1
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|
Computation of Ratios of Earnings to Fixed Charges.
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+23
|
.1
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|
Consent of Ernst & Young LLP.
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23
|
.2
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|
Consent of K&L Gates LLP (included as part of
Exhibit 5.1).
|
|
24
|
.1
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|
Powers of Attorney (included on signature page).
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+25
|
.1
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|
Form T-1
Statement of Eligibility of Senior Debt Indenture Trustee.
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+25
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.2
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Form T-1
Statement of Eligibility of Subordinated Debt Indenture Trustee.
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*
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|
To be filed either by amendment to this Registration Statement
or as an exhibit to a report filed under the Securities Exchange
Act of 1934, as amended, and incorporated herein by reference.
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+
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Filed herewith.
|
Exhibit 4.5
ALLEGHENY TECHNOLOGIES INCORPORATED,
Issuer
and
THE BANK OF NEW YORK MELLON,
Trustee
INDENTURE
Dated as of
Senior Securities
Table of Contents
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Page
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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1
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Section 1.01 Definitions
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1
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Section 1.02 Compliance Certificates and Opinions
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8
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Section 1.03 Form of Documents Delivered to Trustee
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8
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Section 1.04 Acts of Holders; Record Dates
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9
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Section 1.05 Notices, Etc., to Trustee and Company
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11
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Section 1.06 Notice to Holders; Waiver
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11
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Section 1.07 Conflict with Trust Indenture Act
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11
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Section 1.08 Effect of Headings and Table of Contents
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12
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Section 1.09 Successors and Assigns
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12
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Section 1.10 Separability Clause
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12
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Section 1.11 Benefits of Indenture
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12
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Section 1.12 Governing Law
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13
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Section 1.13 Legal Holidays
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13
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Section 1.14 Waiver of Jury Trial
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13
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Section 1.15 Force Majeure
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13
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ARTICLE II SECURITY FORMS
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13
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Section 2.01 Forms Generally
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13
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Section 2.02 Form of Face of Security
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14
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Section 2.03 Form of Reverse of Security
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16
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Section 2.04 Form of Legend for Global Securities
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19
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Section 2.05 Form of Trustees Certificate of Authentication
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19
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ARTICLE III THE SECURITIES
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20
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Section 3.01 Amount Unlimited; Issuable in Series
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20
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Section 3.02 Denominations
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23
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Section 3.03 Execution, Authentication, Delivery and Dating
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23
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Section 3.04 Temporary Securities
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24
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Section 3.05 Registration, Registration of Transfer and Exchange
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25
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Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities
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26
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i
Table of Contents
(continued)
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Page
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Section 3.07 Payment of Interest; Interest Rights Preserved
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27
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Section 3.08 Persons Deemed Owners
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28
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Section 3.09 Cancellation
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28
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Section 3.10 Computation of Interest
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29
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Section 3.11 CUSIP Numbers
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29
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ARTICLE IV SATISFACTION AND DISCHARGE
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29
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Section 4.01 Satisfaction and Discharge of Indenture
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29
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Section 4.02 Application of Trust Money
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30
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ARTICLE V REMEDIES
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30
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Section 5.01 Events of Default
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30
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Section 5.02 Acceleration of Maturity; Rescission and Annulment
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31
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Section 5.03 Collection and Suits for Enforcement by Trustee
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32
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Section 5.04 Trustee May File Proofs of Claim
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33
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Section 5.05 Trustee May Enforce Claims Without Possession of Securities
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33
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Section 5.06 Application of Money Collected
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34
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Section 5.07 Limitation on Suits
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34
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Section 5.08 Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert
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35
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Section 5.09 Restoration of Rights and Remedies
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35
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Section 5.10 Rights and Remedies Cumulative
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35
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Section 5.11 Delay or Omission Not Waiver
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35
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Section 5.12 Control by Holders
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36
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Section 5.13 Waiver of Past Defaults
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36
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Section 5.14 Undertaking for Costs
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36
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Section 5.15 Waiver of Usury, Stay or Extension Laws
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37
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ARTICLE VI THE TRUSTEE
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37
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Section 6.01 Duties of Trustee
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37
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Section 6.02 Rights of Trustee
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38
|
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Section 6.03 Individual Rights of Trustee
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39
|
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Section 6.04 Trustees Disclaimer
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39
|
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ii
Table of Contents
(continued)
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Page
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Section 6.05 Notice of Default
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39
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Section 6.06 Reports by Trustee to Holders
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|
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40
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Section 6.07 Compensation and Indemnity
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|
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40
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Section 6.08 Replacement of Trustee
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41
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Section 6.09 Successor Trustee by Merger, Etc
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42
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Section 6.10 Eligibility; Disqualification
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42
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Section 6.11 Preferential Collection of Claims against Company
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42
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ARTICLE VII HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
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42
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Section 7.01 Company to Furnish Trustee Names and Addresses of Holders
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42
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Section 7.02 Preservation of Information; Communications to Holders
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43
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Section 7.03 Reports by Trustee
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43
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Section 7.04 Reports by Company
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43
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ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
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44
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Section 8.01 When Company May Merge, Etc
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44
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Section 8.02 Successor Substituted
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44
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ARTICLE IX SUPPLEMENTAL INDENTURES
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45
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Section 9.01 Supplemental Indentures Without Consent of Holders
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45
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|
Section 9.02 Supplemental Indentures with Consent of Holders
|
|
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46
|
|
Section 9.03 Execution of Supplemental Indentures
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47
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Section 9.04 Effect of Supplemental Indentures
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47
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Section 9.05 Conformity with Trust Indenture Act
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47
|
|
Section 9.06 Reference in Securities to Supplemental Indentures
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47
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ARTICLE X COVENANTS
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48
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Section 10.01 Payment of Securities
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|
|
48
|
|
Section 10.02 Maintenance of Office or Agency
|
|
|
48
|
|
Section 10.03 Money for Securities Payments to Be Held in Trust
|
|
|
49
|
|
Section 10.04 Compliance Certificate; Notice of Default
|
|
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50
|
|
Section 10.05 Corporate Existence
|
|
|
50
|
|
Section 10.06 Waiver of Certain Covenants
|
|
|
50
|
|
iii
Table of Contents
(continued)
|
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|
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Page
|
ARTICLE XI REDEMPTION OF SECURITIES
|
|
|
50
|
|
|
|
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Section 11.01 Applicability of Article
|
|
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50
|
|
Section 11.02 Election to Redeem; Notice to Trustee
|
|
|
51
|
|
Section 11.03 Selection by Trustee of Securities to Be Redeemed
|
|
|
51
|
|
Section 11.04 Notice of Redemption
|
|
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52
|
|
Section 11.05 Deposit of Redemption Price
|
|
|
52
|
|
Section 11.06 Securities Payable on Redemption Date
|
|
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53
|
|
Section 11.07 Securities Redeemed in Part
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|
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53
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|
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|
|
|
|
ARTICLE XII SINKING FUNDS
|
|
|
53
|
|
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|
|
|
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Section 12.01 Applicability of Article
|
|
|
53
|
|
Section 12.02 Satisfaction of Sinking Fund Payments with Securities
|
|
|
54
|
|
Section 12.03 Redemption of Securities for Sinking Fund
|
|
|
54
|
|
|
|
|
|
|
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
54
|
|
|
|
|
|
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Section 13.01 Companys Option to Effect Defeasance or Covenant Defeasance
|
|
|
54
|
|
Section 13.02 Defeasance and Discharge
|
|
|
55
|
|
Section 13.03 Covenant Defeasance
|
|
|
55
|
|
Section 13.04 Conditions to Defeasance or Covenant Defeasance
|
|
|
55
|
|
Section 13.05 Deposited Money and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provisions
|
|
|
57
|
|
Section 13.06 Reinstatement
|
|
|
58
|
|
iv
INDENTURE, dated as of
, between Allegheny Technologies Incorporated, a corporation duly organized and existing under the laws of Delaware
(herein called the Company), having its principal office as of the date hereof at 1000 Six PPG
Place, Pittsburgh, PA 15222, and The Bank of New York Mellon, a New York banking corporation, as
Trustee (herein called the Trustee).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the Securities), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid and legally binding agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01
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 GAAP with respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of such computation;
(4) the words Article and Section refer to an Article and Section, respectively,
of this
Indenture, unless the context otherwise indicates;
1
(5) 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; and
(6) Certain terms used principally in Articles III, V, XII and XIII are defined in those
Articles.
Act, when used with respect to any Holder, has the meaning specified in Section 1.04.
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.
Bankruptcy Default has the meaning assigned to such term in Section 5.01.
Bankruptcy Law means Title 11, U.S. Code or any similar Federal, state or foreign law for
the relief of debtors.
Board of Directors means either the board of directors of the Company or any duly authorized
committee of that board.
Business Day, when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close.
Commission means the Securities and Exchange Commission, from time to time constituted,
created under the Exchange Act 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.
Company means the Person named as the Company in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor Person.
Company Request or Company Order means a written request or order signed in the name of
the Company by its Chairman of the Board, any Vice Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
Corporate Trust Office means the principal office of the Trustee in New York, New York at
which at any particular time its corporate trust business shall be administered, which
2
office as
of the date hereof is located at 101 Barclay Street 8th Floor West, New York, NY 10286,
Attn: Corporate Trust Division Corporate Finance Unit, or such
other address as the Trustee may designate from time to time by
notice to the Company, or principal corporate trust office of any
Successor Trustee (or such other address as such Successor Trustee
may designate from time to time by notice to the Company).
Corporation means a corporation, association, company, joint-stock company or business
trust.
Covenant Defeasance has the meaning specified in Section 13.03.
Defaulted Interest has the meaning specified in Section 3.07.
Defeasance has the meaning specified in Section 13.02.
Defeasible Series has the meaning specified in Section 13.01.
Depositary means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated by Section 3.01.
Establishment Action shall mean:
(i) a resolution duly adopted by the Companys Board of Directors establishing one or more
series of Securities, authorizing the issuance of any Security and/or authorizing any other action
that may be taken by the Company in connection with this Indenture or the Securities, or
(ii) a resolution or action by a committee, officer or employee of the Company, establishing
one or more series of Securities, authorizing the issuance of any Security and/or authorizing any
other action that may be taken by the Company in connection with this Indenture or the Securities,
in each case, pursuant to a resolution duly adopted by the Companys Board of Directors.
Event of Default has the meaning specified in Section 5.01.
Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, and
any statute successor thereto.
GAAP means generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Financial Accounting Standards Board or in such other statements
by such other entity as have been approved by a significant segment of the accounting profession.
Global Security means a Security that evidences all or part of the Securities of any series
and is authenticated and delivered to, and registered in the name of, the Depositary for such
Securities or a nominee thereof.
Holder means a Person in whose name a Security is registered in the Security Register.
3
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, including, for all purposes of this instrument, and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term Indenture
shall also include the terms of particular series of Securities established as contemplated by
Section 3.01.
Interest, when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
Interest Payment Date, when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.
Maturity, when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
Notice of Default means a written notice of the kind specified in Section 5.01(4).
Officers Certificate means a certificate signed by the Chairman of the Board, a Vice
Chairman of the Board, the Chief Executive Officer, 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)
who is acceptable to the Trustee.
Original Issue Discount Security means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.02.
Outstanding, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture,
except
:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(2) 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 Securities;
provided
that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
4
(3) Securities as to which Defeasance has been effected pursuant to Section 13.02; and
5
(4) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided
,
however
, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (A) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon acceleration of the
Maturity thereof to such date pursuant to Section 5.02, (B) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the U.S. dollar
equivalent, determined in the manner provided as contemplated by Section 3.01 on the date of
original issuance of such Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent on the date of original issuance of such Security of
the amount determined as provided in clause (A) above) of such Security, and (C) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, unless the Company or any such other obligor or Affiliate of the Company or such other obligor owns all of such Securities,
except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgees right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
Paying Agent means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.
Person means any individual, corporation, partnership, joint venture, limited liability
company, joint stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Place of Payment, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 3.01.
Predecessor Security of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
Redemption Date, when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
6
Redemption Price, when used with respect to any 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 on the Securities
of any series means the date specified for that purpose as contemplated by Section 3.01.
Responsible Officer, when used with respect to the Trustee, means any
officer assigned to the Corporate Trust Division Corporate
Finance Unit (or any other successor division or unit) of the
Trustee located at the Corporate Trust Office of the Trustee who shall have
direct responsibility for the administration of this Indenture and, for
purposes of Sections 5.12 and 6.01(c)(2) and the last sentence of
Section 6.05 hereof, 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.
Securities has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
Securities Act means the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
Security Register and Security Registrar have the respective meanings specified in Section
3.05.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.07.
Stated Maturity, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed;
provided
,
however
, that in the event the Trust
Indenture Act of 1939 is amended after such date, Trust Indenture Act means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, Trustee as used with respect to
the Securities of any series shall mean each Trustee with respect to Securities of that series.
U.S. Government Obligations has the meaning specified in Section 13.04.
7
Vice President, when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
vice president.
Section 1.02
Compliance Certificates and Opinions
.
Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officers Certificate, if to be given by an officer of the Company, or
an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than the Officers Certificate
required by the first paragraph of Section 10.04) 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
(4) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
Section 1.03
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 or any subsidiary of the Company stating that the information with respect to such
factual matters is in the possession of the Company or any subsidiary of the Company, unless
8
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 1.04
Acts of Holders; Record Dates
.
Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted 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 Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
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 of 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.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.
The Company may, in the circumstances permitted by the Trust Indenture Act, set any day as the
record date for the purpose of determining the Holders of Outstanding Securities of any series
entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given or taken by Holders of Securities
of such series. With regard to any record date set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date (or their duly appointed agents),
and only such Persons, shall be entitled to give or take the relevant action, whether or not such
Holders remain Holders after such record date. With regard to any action
9
that may be given or taken hereunder only by Holders of a requisite principal amount of Outstanding
Securities of any series (or their duly appointed agents) and for which a record date is set
pursuant to this paragraph, the Company may, at its option, set an expiration date after which no
such action purported to be given or taken by any Holder shall be effective hereunder unless given
or taken on or prior to such expiration date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date (or their duly appointed agents). On or
prior to any expiration date set pursuant to this paragraph, the Company may, on one or more
occasions at its option, extend such date to any later date. Nothing in this paragraph shall
prevent any Holder (or any duly appointed agent thereof) from giving or taking, after any such
expiration date, any action identical to, or, at any time, contrary to or different from, the
action or purported action to which such expiration date relates, in which event the Company may
set a record date in respect thereof pursuant to this paragraph. Nothing in this paragraph shall be
construed to render ineffective any action taken at any time by the Holders (or their duly
appointed agents) of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is so taken. Notwithstanding the foregoing or the Trust Indenture
Act, the Company shall not set a record date for, and the provisions of this paragraph shall not
apply with respect to, any notice, declaration or direction referred to in the next paragraph.
The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 5.02, if an Event of Default
with respect to Securities of such series has occurred and is continuing and the Trustee shall not
have given such a declaration to the Company, (iii) any request to institute proceedings referred
to in Section 5.07(2) or (iv) any direction referred to in Section 5.12, in each case with respect
to Securities of such series. Promptly after any record date is set pursuant to this paragraph, the
Trustee shall notify the Company and the Holders of Outstanding Series of such series of any such
record date so fixed and the proposed action. The Holders of Outstanding Securities of such series
on such record date (or their duly appointed agents), and only such Persons, shall be entitled to
join in such notice, declaration or direction, whether or not such Holders remain Holders after
such record date;
provided
that, unless such notice, declaration or direction shall have
become effective by virtue of Holders of the requisite principal amount of Outstanding Securities
of such series on such record date (or their duly appointed agents) having joined therein on or
prior to the 90th day after such record date, such notice, declaration or direction shall
automatically and without any action by any Person be cancelled and of no further effect. Nothing
in this paragraph shall be construed to prevent a Holder (or a duly appointed agent thereof) from
giving, before or after the expiration of such 90-day period, a notice, declaration or direction
contrary to or different from, or, after the expiration of such period, identical to, the notice,
declaration or direction to which such record date relates, in which event a new record date in
respect thereof shall be set pursuant to this paragraph. Nothing in this paragraph shall be
construed to render ineffective any notice, declaration or direction of the type referred to in
this paragraph given at any time to the Trustee and the Company by Holders (or their duly appointed
agents) of the requisite principal amount of Outstanding Securities of the relevant series on the
date such notice, declaration or direction is so given.
Without limiting the foregoing, a Holder entitled hereunder to give or take any action
hereunder with regard to any particular Security may do so with regard to all or any part of the
10
principal amount of such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such principal amount.
Section 1.05
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 (which may be via facsimile) to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Finance Unit, 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.
Section 1.06
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 Security Register, not later than the latest date (if any), and not earlier than the earliest
date (if any), 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 1.07
Conflict with Trust Indenture Act
.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be deemed
11
to apply to this Indenture as so modified or to be excluded, as the case may be. Wherever this
Indenture refers to a provision of the Trust Indenture Act, such provision is incorporated by
reference in and made a part of this Indenture.
The following Trust Indenture Act terms used in this Indenture have the following meanings:
commission means the United States Securities and Exchange Commission;
indenture securities means the Securities;
indenture security holder means a Holder;
indenture to be qualified means this Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the indenture securities means the Company and any other obligor on the
Securities.
All other Trust Indenture Act terms used in this Indenture that are defined by the Trust
Indenture Act, defined by the Trust Indenture Act referenced to another statute or defined by any
Commission rule and not otherwise defined herein have the meanings defined to them thereby.
Section 1.08
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 1.09
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 1.10
Separability Clause
.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.11
Benefits of Indenture
.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
12
Section 1.12
Governing Law
.
This Indenture and the Securities shall be governed by and construed in accordance with the
law of the State of New York.
Section 1.13
Legal Holidays
.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of the Securities of any
series which specifically states that such provision shall apply in lieu of this Section)) payment
of interest or principal (and premium, if any) need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the intervening period.
Section 1.14
Waiver of Jury Trial
.
EACH OF THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE HEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 1.15
Force Majeure
.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
ARTICLE II
SECURITY FORMS
Section 2.01
Forms Generally
.
The Securities of each series shall be in substantially the form set forth in this Article, or
in such other form as shall be established by or pursuant to an Establishment Action 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
13
thereon as may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities, as evidenced by
their execution of the Securities. If the form of Securities of any series is established by action
taken pursuant to an Establishment Action, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at
or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication
and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 2.02
Form of Face of Security
.
[Insert any legend required by the Internal Revenue Code and the regulations thereunder.]
[Insert Global Security legend if required.]
ALLEGHENY TECHNOLOGIES INCORPORATED
Allegheny Technologies Incorporated, a corporation duly organized and existing under the laws
of Delaware (herein called the Company, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to
,
or registered assigns, the principal sum of
Dollars on
[
if the Security is to bear interest prior to
Maturity, insert
, and to pay interest thereon from
or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on
and
in each year, commencing
, at the rate of
% per annum, until the principal hereof is paid or made available for payment [
if
applicable, insert
, and at the rate of
% per annum on any overdue
principal and premium and on any overdue installment of interest]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest,
which shall be the
or
(whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
14
requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture].
[
If the Security is not to bear interest prior to Maturity, insert
The principal of
this Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this
Security shall bear interest at the rate of
% per annum, which shall
accrue from the date of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on demand. Any such
interest on any overdue principal that is not so paid on demand shall bear interest at the rate of
% per annum, which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for, and such interest
shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [
if applicable, insert
any
such] interest on this Security will be made at the office or agency of the Company maintained for
that purpose in
, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment of public and
private debts [
if applicable, insert
;
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 Security Register] [
if applicable,
insert
;
provided
,
however
, that any such payment in respect of a Global
Security shall be made in same-day funds to the applicable Depositary].
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
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ALLEGHENY TECHNOLOGIES
INCORPORATED
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By:
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Name:
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Title:
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15
[Insert Trustees certificate of authentication.]
Section 2.03
Form of Reverse of Security
.
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture, dated as of
,
20
(herein called the Indenture), between the Company and
,
as Trustee (herein called the Trustee, which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [
if applicable, insert
, limited in aggregate principal
amount to $
].
[If applicable, insert legend regarding conversion procedures]
[
If applicable, insert
The Securities of this series are subject to redemption upon
not less than 30 nor more than 60 days notice by mail, [
if applicable, insert
(1) on
in any year commencing with the year
and
ending with the year
through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [
if
applicable, insert
on or after
, 20___], as a whole or in part,
at the election of the Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [
if applicable, insert
on or before
, ___%, and
if redeemed] during the 12-month period beginning
of the years indicated,
and thereafter at a Redemption Price equal to
% of the principal
amount, together in the case of any such redemption [
if applicable, insert
(whether
through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof, all as provided in
the Indenture.
[
If applicable, insert
The Securities of this series are subject to redemption upon
not less than 30 nor more than 60 days notice by mail, (1) on
in any
year commencing with the year
and ending with the year
through operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below, and (2) at any time [
if applicable, insert
on or after
],
as a whole or in part, at the election of the Company, at the Redemption
Prices for redemption otherwise than through operation of
16
the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month
period beginning
of the years indicated,
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Redemption Price
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Redemption Price For
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For Redemption
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Redemption Otherwise
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Through Operation
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Than Through Operation
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Year
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of the Sinking Fund
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of the Sinking Fund
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and thereafter at a Redemption Price equal to
% of the principal
amount, together in the case of any such redemption (whether through operation of the sinking fund
or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.]
[
If applicable, insert
The sinking fund for this series provides for the redemption
on
in each year beginning with the year
and ending with the year
of [
if applicable,
insert
not less than $
(mandatory sinking
fund) and not more than] $
aggregate principal
amount of Securities of this series. Securities of this series acquired or redeemed by the Company
otherwise than through [
if applicable, insert
mandatory] sinking fund payments [
if
applicable, insert
and Securities surrendered for conversion] may be credited against
subsequent [
if applicable, insert
mandatory] sinking fund payments otherwise required to
be made [
if applicable, insert
in the inverse order in which they become due].
[
If the Security is subject to redemption of any kind, insert
In the event of
redemption of this Security in part only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[
If applicable, insert
The Indenture contains provisions for defeasance at any time
of [(1) the entire indebtedness of this Security or (2)] certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with certain conditions set
forth in the Indenture.]
[
If the Security is not an Original Issue Discount Security, insert
If an Event of
Default with respect to Securities of this series shall occur and be continuing, the principal of
the Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[
If the Security is an Original Issue Discount Security, insert
If an Event of
Default with respect to Securities of this series shall occur and be continuing, an amount of
principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture. Such amount shall be equal to
insert formula for
determining the amount
. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest all of the Companys obligations
in respect
17
of the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
reasonable indemnity and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted
by the Holder of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of (and premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any Place of Payment, duly
endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company
and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
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The Securities of this series are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company or the Security Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this 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 this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
Section 2.04
Form of Legend for Global Securities
.
Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:
This Security is a Global Security within the meaning of the Indenture hereinafter referred to
and is registered in the name of a Depositary or a nominee thereof. This Security may not be
transferred to, or registered or exchanged for Securities registered in the name of, any Person
other than the Depositary or a nominee thereof and no such transfer may be registered, except in
the limited circumstances described in the Indenture. Every Security authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of, this Security shall be a Global
Security subject to the foregoing, except in such limited circumstances.
Section 2.05
Form of Trustees Certificate of Authentication
.
The Trustees certificates of authentication shall be in substantially the following form:
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This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON,
as Trustee
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By:
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Authorized Signatory
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Dated:
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ARTICLE III
THE SECURITIES
Section 3.01
Amount Unlimited; Issuable in Series
.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to an Establishment Action and, subject to Section 3.03, set forth, or determined in the manner
provided, in an Officers Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series, including CUSIP Numbers (which shall
distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which, pursuant
to Section 3.03, are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be payable, if other
than the Person in whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities of the series is payable;
(5) the rate or rates at which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue, the Interest Payment Dates on which any
20
such interest shall be payable and the Regular Record Date for any interest payable on any Interest
Payment Date;
(6) the place or places where the principal of and any premium and interest on Securities of
the series shall be payable;
(7) the period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or in part, at the option
of the Company;
(8) the obligation, if any, of the Company to redeem or purchase Securities of the series
pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof, the denominations
in which Securities of the series shall be issuable;
(10) the currency, currencies or currency units in which payment of the principal of and any
premium and interest on any Securities of the series shall be payable if other than the currency of
the United States of America and the manner of determining the equivalent thereof in the currency
of the United States of America for purposes of the definition of Outstanding in Section 1.01;
(11) if the amount of payments of principal of or any premium or interest on any Securities of
the series may be determined with reference to an index, the manner in which such amounts shall be
determined;
(12) if the principal of or any premium or interest on any Securities of the series is to be
payable, at the election of the Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any premium and interest on
Securities of such series as to which such election is made shall be payable, and the periods
within which and the terms and conditions upon which such election is to be made;
(13) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.02;
(14) if applicable, that the provisions of Article IV shall not apply to the Securities of the
series;
(15) if applicable, that the Securities of the series shall be subject to either or both of
Defeasance or Covenant Defeasance as provided in Article XIII; provided that no series of
21
Securities that is convertible into or exchangeable for any other securities pursuant to Section
3.01(16) shall be subject to Defeasance pursuant to Section 13.02;
(16) if and as applicable, that the Securities of the series shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the Depositary or Depositaries
for such Global Security or Global Securities and any circumstances other than those set forth in
Section 3.05 in which any such Global Security may be transferred to, and registered and exchanged
for Securities registered in the name of, a Person other than the Depositary for such Global
Security or a nominee thereof and in which any such transfer may be registered;
(17) the terms and conditions, if any, pursuant to which the Securities are convertible into
or exchangeable for any other securities;
(18) any addition to or change in the covenants set forth in Article X which applies to
Securities of the series; and
(19) any other terms of the series (which terms shall not be inconsistent with the provisions
of this Indenture, except as permitted by Section 9.01(5)).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to an Establishment Action referred to above
and (subject to Section 3.03) set forth, or determined in the manner provided, in the Officers
Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to an Establishment
Action, a copy of an appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Officers Certificate setting forth the terms of the series.
Subject to any limitation imposed in accordance with paragraph (2) above, the Company may,
from time to time, by an Establishment Action and subject to compliance with any other applicable
provisions of this Indenture, without the consent of the Holders, create and issue pursuant to this
Indenture additional securities of any series of Securities (
Add On Securities
) having
terms and conditions identical to those of such series of Outstanding Securities, except that such
Add On Securities:
(i) may have a different issue date from such series of Outstanding Securities;
(ii) may have a different amount of interest payable on the first Interest Payment Date after
issuance than is payable on such series of Outstanding Securities; and
(iii) may have terms specified in such Establishment Action for such Add On Securities making
appropriate adjustments to this Article III applicable to such Add On Securities in order to
conform to and ensure compliance with the Securities Act (or applicable securities laws) which are
not adverse in any material respect to the Holder of any Outstanding
22
Securities (other than such Add On Securities) and which shall not affect the rights or duties of the Trustee.
Section 3.02
Denominations
.
The Securities of each series shall be issuable only in registered form without coupons in
such denominations as shall be specified as contemplated by Section 3.01. In the absence of any
such specified denomination with respect to the Securities of any series, the Securities of such
series shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.03
Execution, Authentication, Delivery and Dating
.
The Securities shall be executed on behalf of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President, one of its Vice Presidents or its Treasurer, and
attested by its Secretary or one of its Assistant Secretaries or by its Chief Financial Officer.
The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any Series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the series have been established in or
pursuant to one or more Establishment Actions as permitted by Sections 2.01 and 3.01, in
authenticating such Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be provided with, and (subject to Section 6.01)
shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by an Establishment Action as
permitted by Section 2.01, that such form has been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities have been established by an Establishment Action as
permitted by Section 3.01, that such terms have been established in conformity with the provisions
of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors rights and to general
equity principles.
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If such form or terms have been so established, the Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the
Trustees own rights, duties or immunities under the Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers Certificate otherwise required pursuant to Section 3.01 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
time of authentication of each Security of such series if such documents are delivered at or prior
to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09,
for all purposes of this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04
Temporary Securities
.
Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor. Until so exchanged the temporary Securities
24
of any series shall in all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series and tenor.
Section 3.05
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 of the Company in a Place
of Payment being herein sometimes collectively referred to as the Security Register) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby appointed
Security Registrar for the purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security of any series at the office or
agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of a like aggregate principal
amount and tenor.
At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company or Security Registrar may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving
any transfer.
The Company shall not be required (1) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of that series selected for redemption
under Section 11.03 and ending at the close of business on the day of such mailing, or (2) to
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register the transfer of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision in this Indenture, no Global Security may be transferred
to, or registered or exchanged for Securities registered in the name of, any Person other than the
Depositary for such Global Security or any nominee thereof, and no such transfer may be registered,
unless (1) such Depositary (A) notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security and the Company does not appoint
a successor Depositary within 90 days after receiving such
notice or (B) has ceased to be a clearing agency registered under the
Exchange Act and the Company does not appoint a successor Depositary
within 90 days after becoming aware that the Depositary has
ceased to be registered as a clearing agency, (2) the Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so transferable, registrable and exchangeable, and such transfers shall be
registrable, (3) there shall have occurred and be continuing an Event of Default with respect to
the Securities evidenced by such Global Security or (4) there shall exist such other circumstances,
if any, as have been specified for this purpose as contemplated by Section 3.01. Notwithstanding
any other provision in this Indenture, a Global
Security to which the restriction set forth in the preceding sentence shall have ceased to apply
may be transferred only to, and may be registered and exchanged for Securities registered only in
the name or names of, such Person or Persons as the Depositary for such Global Security shall have
directed and no transfer thereof other than such a transfer may be registered.
Every Security authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, a Global Security to which the restriction set forth in the first sentence of
the preceding paragraph shall apply, whether pursuant to this Section, Section 3.04, 3.06, 9.06 or
11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global
Security.
Section 3.06
Mutilated, Destroyed, Lost and Stolen Securities
.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed
26
in relation thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this Section in exchange for any mutilated
Security or in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 3.07
Payment of Interest; Interest Rights Preserved
.
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called Defaulted Interest) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series and the date of
the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the 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 of Securities of such series at
his address as it appears in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such
27
Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any series in
any other lawful manner not inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 3.08
Persons Deemed Owners
.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of and
any premium and (subject to Section 3.07) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
Owners of beneficial interests in the Securities evidenced by a Global Security will not be
entitled to any rights under this Indenture with respect to such Global Security, and the
Depositary or its nominee may be treated by the Company and the Trustee and any agent of the
Company or the Trustee, as the owner and Holder of such Global Security for all purposes
whatsoever. None of the Company, the Trustee or any other agent of the Company or of the Trustee
shall have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests. None of the
Company, the Trustee, any agent of the Company or of the Trustee shall have any responsibility or
liability to any Person for any acts or omissions of the Depositary or its nominee in respect of a
Global Security, for the records of any such Depositary, including records in respect of beneficial
ownership interests in respect of such Global Security, for any transactions between such
Depositary and any participant or indirect participant in such Depositary or between or among such
Depositary, any participant or indirect participant in such Depositary and/or any Holder or owner
of a beneficial interest in such Global Security, or for any transfers of beneficial interests in
any such Global Security. Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or its nominee or impair, as between the Depositary or
its nominee and such owners of beneficial interests, the operation of customary practices governing
the exercise of the rights of the Depositary or its nominee as Holder of any Global Security.
Section 3.09
Cancellation
.
All Securities surrendered for payment, redemption, registration of transfer or exchange or
conversion or for credit against any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by
the Trustee in its customary manner.
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Section 3.10
Computation of Interest
.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section 3.11
CUSIP Numbers
.
The Company in issuing the Securities may use CUSIP, ISIN and other similar numbers (if then generally in use), and,
if so, the Trustee shall use CUSIP, ISIN and other similar numbers in notices of redemption as a convenience to Holders;
provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any changes in the CUSIP, ISIN and other similar numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01
Satisfaction and Discharge of Indenture
.
Unless otherwise specified with respect to a series of Securities in accordance with Section
3.01, this Indenture shall upon Company Request cease to be of further effect (except as to any
surviving rights of conversion, registration of transfer or exchange of Securities herein expressly
provided for), and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than (i) Securities
which have been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 3.06 and (ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust) have been delivered to the Trustee for cancellation; or
(B) all such Securities 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
29
(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 such Securities not theretofore delivered to
the Trustee for cancellation, for principal and any premium and interest to the date of such
deposit (in the case of 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;
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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 6.07, and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under
Section 4.02 shall survive such satisfaction and discharge.
Section 4.02
Application of Trust Money
.
All money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and
applied by it, in accordance with the provisions of the Securities 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
any premium and interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
Section 5.01
Events of Default
.
Event of Default, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series when it becomes
due and payable, and continuance of such default for a period of 30 days;
30
(2) default in the payment of the principal of (or premium, if any, on) any Security of that
series at its Maturity;
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series, and continuance of such default for a period of 30 days;
(4) default in the performance, or breach, of any covenant or warranty of the Company 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 or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating that such notice is a
Notice of Default hereunder;
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company in an involuntary case or proceeding under any applicable
Bankruptcy Law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or
in respect of the Company under any applicable Federal or State law, or appointing a custodian,
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 for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days;
(6) the commencement by the Company of a voluntary case or proceeding under any applicable
Bankruptcy Law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other 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 (an event of default specified in clause (5) or (6), a Bankruptcy Default); or
(7) any other Event of Default provided with respect to Securities of that series.
Section 5.02
Acceleration of Maturity; Rescission and Annulment
.
If an Event of Default, other than a Bankruptcy Default, with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the
31
Holders of not less than 25% in principal amount of the Outstanding Securities of that series may
declare the principal amount (or, if any of the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that 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 amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
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 Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have become
due otherwise than by such declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
If a Bankruptcy Default occurs, the principal of and accrued but unpaid interest on all
Securities then outstanding will become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
Section 5.03
Collection and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
32
(2) default is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal and any premium
and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, 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 an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem necessary 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 5.04
Trustee May File Proofs of Claim
.
In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder 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 6.07.
No provision of this Indenture 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 Securities 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;
provided
,
however
, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a creditors or other
similar committee.
Section 5.05
Trustee May Enforce Claims Without Possession of Securities
.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee
33
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 Trustee, its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 5.06
Application of Money Collected
.
Any
money collected by the Trustee pursuant to this Article, and any money or
other property distributable in respect of the Companys
obligations under this Indenture after an Event of Default, 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 any premium or interest, upon presentation of the 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 (including any
predecessor Trustee) under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and
interest on the Securities 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 Securities for principal and any premium and interest, respectively; and
THIRD: To the Company.
Section 5.07
Limitation on Suits.
No Holder of any 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 with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that
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 satisfactory to it
against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities
of that series;
34
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 5.08
Unconditional Right of Holders to Receive Principal, Premium and Interest
.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 3.07) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be impaired without the
consent of such Holder.
Section 5.09
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 5.10
Rights and Remedies Cumulative
.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.06, 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 not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 5.11
Delay or Omission Not Waiver
.
No delay or omission of the Trustee or of any Holder of any Securities 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.
35
Section 5.12
Control by Holders
.
The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series,
provided
that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) subject to the provisions of Section 6.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee in good faith shall, by a Responsible Officer or Officers
of the Trustee, determine that the proceedings so directed would involve the Trustee in personal
liability.
Section 5.13
Waiver of Past Defaults
.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of such
series, or
(2) in respect of a covenant or provision hereof which under Article IX cannot be modified or
amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14
Undertaking for Costs
.
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, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, including reasonable attorneys fees and expenses, in
the manner and to the extent provided in the Trust Indenture Act;
provided
that neither
this Section nor the Trust Indenture Act shall apply to any suit instituted by the Trustee, to any
suit instituted by any Holders of the Securities, or group of Holders of the Securities, holding in
the aggregate more than 10% of principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder of the Outstanding Securities for the enforcement of the payment
of principal of or interest on, or the conversion of, any Outstanding Securities held by such
Holder,
36
on or after the respective due dates expressed in such Outstanding Securities; and
provided
,
further
, that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company.
Section 5.15
Waiver of Usury, 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
usury, 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.
ARTICLE VI
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and covenants and
agrees to perform the same, as herein expressed.
Section 6.01
Duties of Trustee
.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are specifically set forth in this
Indenture and no others, and no covenants or obligations shall be implied in or read into
this Indenture.
(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. However, 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 substantially conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts, statements, opinions or
conclusions stated therein).
37
(c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1)
This paragraph does not limit the effect of paragraph (b) or (d) of this Section 6.01.
(2) The Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts.
(3) The Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 5.12.
(d) 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 to
take or omit to take any action under this Indenture.
(e) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c), (d) and (f) of this Section 6.01.
(f) The
Trustee shall not be liable for interest on, or for investment of, any assets received by it except as the
Trustee may agree in writing with the Company. Assets held in trust by the Trustee need not be
segregated from other assets except to the extent required by law.
Section 6.02
Rights of Trustee
.
Subject to Section 6.01:
(a) The Trustee may conclusively rely on any document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in any document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate
or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The
Trustee shall not be liable for any action it takes, suffers to exist or omits to take in good faith
which it believes to be authorized or within its rights or powers.
(e) 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, or other paper or document, but the Trustee, in its discretion,
38
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 at the
sole cost of the Company and shall incur no liability or additional liability of any kind by reason
of such investigation.
(f) The Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection of any action taken,
suffered or omitted by in hereunder in good faith and in reliance thereon.
(g) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.
(h) 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 security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(i) The Trustee shall not be deemed to have notice of any default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture.
(j) The Trustee may request that the Company deliver an Officers Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers Certificate may be signed by any person
authorized to sign an Officers Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
(k) Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for
special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but
not limited to loss of profit), even if the Trustee has been advised as to the likelihood of such
loss or damage and regardless of the form of action.
Section 6.03
Individual Rights of Trustee
.
The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent or Security Registrar may do the same with like
rights. However, the Trustee must comply with Sections 6.08, 6.09 and 6.10.
Section 6.04
Trustees Disclaimer
.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities and it shall not be accountable for the Companys use of the proceeds from the
Securities, and it shall not be responsible for any statement in the Securities, other than the
Trustees certificate of authentication, all of which statements
shall be taken as the statements of the Company, or the use or application of any funds received by a
Paying Agent other than the Trustee.
Section 6.05
Notice of Default
.
If an Event of Default with respect to Securities of any series occurs and is continuing and
if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Holder of
Securities of such series notice of the uncured Event of Default within 90 days after such
39
Event of Default occurs. Except in the case of an Event of Default in payment of principal (or
premium, if any) of, or interest on, any Security, the Trustee may withhold the notice if and so
long as a Responsible Officer in good faith determines that withholding the notice is in the
interest of the Holders of Securities of such series.
Section 6.06
Reports by Trustee to Holders
.
Within 60 days after each February 15 beginning with the February 15 following the date of
this Indenture, the Trustee shall mail to each Holder a brief report dated as of such February 15
that complies with Trust Indenture Act Section 313(a) if such report is required by such Trust
Indenture Act Section 313(a). The Trustee also shall comply with Trust Indenture Act Sections
313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if the Securities of any series
become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Holders shall be mailed to the Company and
filed with the Commission and each stock exchange, if any, on which the Securities are listed.
Section 6.07
Compensation and Indemnity
.
The Company shall pay to the Trustee from time to time such compensation for its services as
the Company and the Trustee shall from time to time agree in writing. The Trustees compensation
shall not be limited by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses and advances incurred
or made by it. Such expenses shall include the reasonable compensation, disbursements and expenses
of the Trustees agents, accountants, experts and counsel.
The Company shall indemnify each of the Trustee (in its capacity as Trustee) and any
predecessor Trustee and each of their respective officers, directors,
employees, attorneys-in-fact and agents
for, and hold it harmless against, any and all loss, liability, claim, damage, demand, expense (including but not limited to
reasonable compensation, disbursements and expenses of the Trustees agents and counsel), loss,
charges (including taxes (other than taxes based upon the income of the Trustee)) or liability
incurred by them without gross negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust and their rights or duties hereunder including the
reasonable costs and expenses of defending themselves against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder. The Trustee shall notify
the Company promptly of any claim asserted against the Trustee for
which it may seek indemnity; provided, however, that the failure to
so notify the Company shall not offset the Companys
indemnification obligations hereunder. The
Company shall defend the claim and the Trustee shall provide reasonable cooperation at the
Companys expense in the defense. The Trustee may have separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made
without its written consent which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability to the extent incurred by the
Trustee as determined by a court of
40
competent jurisdiction to have been caused by its own gross negligence, bad faith or willful misconduct.
To secure the Companys payment obligations in this Section 6.07, the Trustee shall have a
lien prior to the Securities on all assets held or collected by the Trustee, in its capacity as
Trustee, except assets held in trust to pay principal and premium, if any, of or interest on
particular Securities.
In addition to and without prejudice to its other rights hereunder, when the Trustee incurs expenses or renders services after an Event of Default specified in
Section 5.01(5) or (6) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
The Companys obligations under this Section 6.07 and any lien arising hereunder shall survive
the resignation or removal of the Trustee, the discharge of the Companys obligations pursuant to
Article IV of this Indenture and any rejection or termination of this Indenture under any
Bankruptcy Law.
Section 6.08
Replacement of Trustee
.
The Trustee may resign at any time with respect to the Securities of one or more series by so
notifying the Company in writing. The Holder or Holders of a majority in principal amount of the
outstanding Securities of a series may remove the Trustee with respect to Securities of such series
by so notifying the Company and the Trustee in writing and may appoint a successor trustee with
respect to Securities of such series with the Companys consent. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver, custodian, or other public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee, with
respect to the Securities of one or more series, for any reason, the Company shall promptly appoint
a successor Trustee, with respect to Securities of that or those series. Within one year after the
successor Trustee with respect to a series of Securities takes office, the Holder or Holders of a
majority in principal amount of the Securities of such series may appoint a successor Trustee with
respect to such series to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that and provided that all sums owing to the Trustee
provided for in Section 6.07 have been paid, the retiring Trustee shall transfer all
41
property held by it as Trustee with respect to such series of Securities to the successor Trustee,
subject to the lien provided in Section 6.07, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights, powers and duties of
the Trustee under this Indenture. A successor Trustee with respect to one or more series of
Securities shall mail notice of its succession to each Holder of Securities of that or those
series.
If a successor Trustee with respect to a series of Securities does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holder or Holders of at least 10% in principal amount of the outstanding Securities of that series
may petition at the expense of the Company any court of competent jurisdiction for the appointment
of a successor Trustee with respect to such series.
If the Trustee fails to comply with Section 6.10, any Holder of Securities of a series may
petition any court of competent jurisdiction for the removal of the Trustee with respect to such
series and the appointment of a successor Trustee with respect to such series.
Notwithstanding replacement of the Trustee pursuant to this Section 6.08, the Companys
obligations under Section 6.07 and the lien provided for therein shall continue for the benefit of the retiring Trustee.
Section 6.09
Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts with or into, or transfers all or substantially
all of its corporate trust business to, another Person, the resulting, surviving or transferee
Person without any further act shall, if such resulting, surviving or transferee Person
is otherwise eligible hereunder, be the successor Trustee.
Section 6.10
Eligibility; Disqualification
.
The Trustee shall at all times satisfy the requirements of Trust Indenture Act Section
310(a)(1) and Trust Indenture Act Section 310(a)(5). The Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with Trust Indenture Act Section 310(b).
Section 6.11
Preferential Collection of Claims against Company
.
The Trustee shall comply with Trust Indenture Act Section 311(a), excluding any creditor
relationship listed in Trust Indenture Act Section 311(b). A Trustee who has resigned or been
removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated.
ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01
Company to Furnish Trustee Names and Addresses of Holders
.
The Company will furnish or cause to be furnished to the Trustee:
42
(1) semi-annually, not more than 15 days after each Regular Record Date, a list for each
series of Securities, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of such series as of the Regular Record Date, as the case
may be, and
(2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
excluding
from any such list names and addresses received by the Trustee in its capacity as
Security Registrar.
Section 7.02
Preservation of Information; Communications to Holders
.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01
upon receipt of a new list so furnished.
The rights of the Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
Every Holder of 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 any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 7.03
Reports by Trustee
.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
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 any Securities are listed, with the Commission and with
the Company. The Company will notify the Trustee when any Securities are listed on any stock
exchange or delisted therefrom.
Section 7.04
Reports by Company
.
The Company shall file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant to such Act;
43
provided
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed
with the Trustee within 15 days after the same is so required to be filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes
only and the Trustees receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Companys
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers Certificates). All information, documents and reports described in this Section 7.04 and filed with
the Commission pursuant to its Electronic Data Gathering, Analysis, and Retrieval system or any successor system shall be
deemed to be filed with the Trustee as of the time they are filed via such system.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01
When Company May Merge, Etc.
The Company may not, in a single transaction or through a series of related transactions,
consolidate with or merge with or into any other Person, or, directly or indirectly, sell or convey
all or substantially all of its properties and assets to another Person or group of affiliated Persons, unless:
(1) the Company shall be the continuing Person, or the Person (if other than the Company)
formed by such consolidation or into which the Company is merged or to which all or substantially
all of the properties and assets of the Company are sold or conveyed (the Company or such other Person
being hereinafter referred to as the Surviving Person), shall be organized and validly existing
under the laws of the United States, 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, all the obligations of the Company under the
Securities and this Indenture;
(2) immediately after giving effect to such transaction and the assumption of the obligations
as set forth in clause (1), above, no 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, assignment, or transfer and such supplemental indenture comply with
this Article VIII and that all conditions precedent herein provided relating to such transaction
have been satisfied.
Section 8.02
Successor Substituted
.
44
Upon any consolidation or merger, or any transfer of assets in accordance with Section 8.01,
the Surviving Person formed by such consolidation or into which the Company is merged or to which
such transfer 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 Surviving Person had
been named as the Company herein. When a Surviving Person duly assumes all of the obligations of
the Company pursuant hereto and pursuant to the Securities, the predecessor shall be relieved of
the performance and observance of all obligations and covenants of this Indenture and the
Securities, including but not limited to the obligation to make payment of the principal of and
interest, if any, on all the Securities then outstanding, and the Company may thereupon or any time
thereafter be liquidated and dissolved.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01
Supplemental Indentures Without Consent of Holders
.
Without the consent of any Holders, the Company, when authorized by an Establishment Action,
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:
(1) to evidence the succession of another Person to the Company pursuant to Article VIII and
the assumption by any such successor of the covenants of the Company herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of the Holders of all or any series
of Securities (and if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the Company;
(3) to add any additional Events of Default;
(4) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form;
(5) to add to, change or eliminate any of the provisions of this Indenture in respect of one
or more series of Securities,
provided
that any such addition, change or elimination (A)
shall neither (i) apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of
the Holder of any such Security with respect to such provision or (B) shall become effective only
when there is no such Security Outstanding;
(6) to secure the Securities pursuant to the requirements of Article X or otherwise;
45
(7) to establish the form or terms of Securities of any series as permitted by Sections 2.01
and 3.01;
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Securities of one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11;
(9) to
cure any ambiguity, or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; or
(10) or to make any other provisions with
respect to matters or questions arising under this Indenture,
provided
that such action
pursuant to this clause (10) shall not adversely affect the interests of the Holders of Securities
of any series.
Section 9.02
Supplemental Indentures with Consent of Holders
.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized by an Establishment
Action, 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 Securities of such
series under this Indenture;
provided
,
however
, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest or the
time of payment of interest thereon or any premium payable upon the redemption thereof, or reduce
the amount of the principal of an Original Issue Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change the
coin or currency in which, any Security or any premium or 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 any rights of the Holders of Securities to
require the Company to repay or repurchase the Securities, or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section 5.13, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security affected thereby,
provided
,
however
, that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to the Trustee and concomitant changes in
this
46
Section, or the deletion of this proviso, in accordance with the requirements of Sections 6.11 and
9.01(8), or
(4) change any obligation of the Company to maintain an office or agency, or
(5) change any obligation of the Company to pay additional amounts, or
(6) adversely affect any right of repayment or repurchase at the option of the Holder, or
(7) reduce or postpone any sinking fund or similar provision.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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 9.03
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 provided with, and (subject to Section 6.01) 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 9.04
Effect of Supplemental Indentures
.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 9.05
Conformity with Trust Indenture Act
.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
Section 9.06
Reference in Securities to Supplemental Indentures
.
47
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities
of such series.
ARTICLE X
COVENANTS
Section 10.01
Payment of Securities
.
The Company covenants and agrees for the benefit of each series of Securities that it will pay
the principal of and interest on the Securities of that series on the dates and in the manner
provided in the Securities of that series and this Indenture. An installment of principal, premium,
if any, or interest on the Securities shall be considered paid on the date it is due if the Trustee
or Paying Agent (other than the Company or an Affiliate of the Company) holds for the benefit of
the Holders, on that date, immediately available funds deposited and designated for and sufficient
to pay the installment. The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Securities compounded semi-annually, to the
extent lawful.
Section 10.02
Maintenance of Office or Agency
.
The Company shall maintain in the Place of Payment for any series of Securities, an office or
agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served and, in the case of any series of Securities that is convertible or
exchangeable for any other securities pursuant to Section 3.01(16), where Securities can be
surrendered for conversion or exchange. The Company shall 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.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations;
provided
,
however
, that no
such designation or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any series for such
purposes. The Company shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency. The Company hereby
48
initially designates the principal corporate trust office of the Trustee as such office of the
Company.
Section 10.03
Money for Securities Payments to Be Held in Trust
.
If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of or any premium or interest on
any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and 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 for any series of Securities, it
will, on or prior to each due date of the principal of or any premium or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the Securities of that series)
in the making of any payment in respect of the Securities of that series, upon the written request
of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same 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 or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium 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 Security 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 City, notice
49
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 10.04
Compliance Certificate; Notice of Default
.
The Company shall deliver to the Trustee within 120 days after the end of its fiscal year an
Officers Certificate (one of the signatories of which shall be the Companys principal executive
officer, principal financial officer or principal accounting officer) complying with Section
314(a)(4) of the Trust Indenture Act and stating that a review of its activities during the
preceding fiscal year has been made under the supervision of the signing officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its obligations under
this Indenture (all without regard to periods of grace, which shall be deemed fulfilled unless and
until the expiration of such periods or notice requirements) and further stating, as to each such
officer signing such certificate, whether or not the signer knows of any failure by the Company to
comply with any conditions or covenants in this Indenture and, if such signer does know of such a
failure to comply, the certificate shall describe such failure with particularity. The Officers
Certificate shall also notify the Trustee should the relevant fiscal year end on any date other
than the current fiscal year end date.
So long as any of the Securities are outstanding, the Company will deliver
to the Trustee, forthwith upon becoming aware of any Event of Default or any
event, act or condition that, after notice or the passage of time or both,
would be an Event of Default, an Officers Certificate specifying such Event of
Default or any event, act or condition that, after notice or the passage of
time or both, would be an Event of Default, and what action the Company is
taking or proposes to take with respect thereto.
Section 10.05
Corporate Existence
.
Subject to Article VIII, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence in accordance with its
organizational documents.
Section 10.06
Waiver of Certain Covenants
.
Except as otherwise specified as contemplated by Section 3.01 for Securities of such series,
the Company may, with respect to the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant pursuant to Section
3.01(18), 9.01(2) or 9.01(7) for the benefit of the Holders of such series, if the Holders of at
least a majority in principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent expressly waived and, until such waiver shall become effective, the
obligations of the Company and the duties of the trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.01
Applicability of Article
.
50
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01
for Securities of any series) in accordance with this Article.
Section 11.02
Election to Redeem; Notice to Trustee
.
The election of the Company to redeem any Securities shall be evidenced by an Establishment
Action. In case of any redemption at the election of the Company of all or less than all the
Securities of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers Certificate evidencing compliance with such restriction.
Section 11.03
Selection by Trustee of Securities to Be Redeemed
.
If less than all the Securities of any series are to be redeemed (unless all of the Securities
of such series and of a specified tenor are to be redeemed), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series 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 the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series. If less than all of
the Securities of such series and of a specified tenor are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor not previously
called for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the converted portion of
such Security shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted during a selection of 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 in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
51
Section 11.04
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 Securities to be redeemed,
at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption of any Securities, the principal amounts) of
the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Securities are to be surrendered for payment of the
Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case, and
(7) applicable
CUSIP, ISIN or other similar numbers.
Notice of redemption of 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 and shall be irrevocable.
Section 11.05
Deposit of Redemption Price
.
On or before the Redemption Date specified in the notice of redemption given as provided in
Section 11.04, 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
10.03) 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 Securities which are to be
redeemed on that date, other than any Securities called for redemption on that date which have been
converted prior to the date of such deposit.
If any 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 Security shall
(subject to any right of the Holder of such Security or any Predecessor Security to receive
interest as provided in the last paragraph of Section 3.07) be paid to the Company upon Company
Request or, if then held by the Company, shall be discharged from such trust.
52
Section 11.06
Securities Payable on Redemption Date
.
Notice of redemption having been given as aforesaid, the 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 Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided
,
however
, that, unless otherwise specified as contemplated by Section 3.01, installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as such at the close
of business on the relevant Record Dates according to their terms and the provisions of Section
3.07.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
Section 11.07
Securities Redeemed in Part
.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE XII
SINKING FUNDS
Section 12.01
Applicability of Article
.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section 3.01 for Securities
of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a mandatory sinking fund payment, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an optional sinking fund payment. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to
53
reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 12.02
Satisfaction of Sinking Fund Payments with Securities
.
The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series;
provided
that such Securities have
not been previously so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03
Redemption of Securities for Sinking Fund
.
Not less than 60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities of that series pursuant to Section 12.02
and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 11.03 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 11.04. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01
Companys Option to Effect Defeasance or Covenant Defeasance
.
The Company may elect, at its option at any time, to have either Section 13.02 or Section
13.03 applied to the Outstanding Securities of any series designated pursuant to Section 3.01 as
being defeasible pursuant to this Article XIII (hereinafter called a Defeasible Series), upon
compliance with the conditions set forth below in this Article XIII;
provided
,
however
, that Section 13.02 shall not apply to any series of Securities that is convertible
into or exchangeable for any other securities pursuant to Section 3.01(16). Any such election shall
be evidenced by an Establishment Action or in another manner specified as contemplated by Section
3.01 for such Securities.
54
Section 13.02
Defeasance and Discharge
.
Upon the Companys exercise of the option provided in Section 13.01 to have this Section 13.02
applied to the Outstanding Securities of any Defeasible Series and subject to Section 13.01, the
Company shall be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series as provided in this Section on and after the date the
conditions set forth in Section 13.04 are satisfied (hereinafter called Defeasance). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under the Securities of such series and this Indenture insofar as the
Securities of such series are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following which shall survive
until otherwise terminated or discharged hereunder: (1) the rights of Holders of Securities of such
series to receive, solely from the trust fund described in Section 13.04 and as more fully set
forth in such Section, payments in respect of the principal of and any premium and interest on such
Securities of such series when payments are due, (2) the Companys obligations with respect to the
Securities of such series under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (4) this Article XIII. Subject to
compliance with this Article XIII, the Company may exercise its option provided in Section 13.01 to
have this Section 13.02 applied to the Outstanding Securities of any Defeasible Series
notwithstanding the prior exercise of its option provided in Section 13.01 to have Section 13.03
applied to the Outstanding Securities of such series.
Section 13.03
Covenant Defeasance
.
Upon the Companys exercise of the option provided in Section 13.01 to have this Section 13.03
applied to the Outstanding Securities of any Defeasible Series, (1) the Company shall be released
from its obligations under Section 8.01 and any covenants provided pursuant to Section 3.01(18) or
9.01(2) for the benefit of the Holders of such Securities, and (2) the occurrence of any event
specified in Sections 5.01(3) and 5.01(4) (with respect to Section 8.01 and any such covenants
provided pursuant to Section 3.01(18) or 9.01(2)) shall be deemed not to be or result in an Event
of Default, in each case with respect to the Outstanding Securities of such series as provided in
this Section on and after the date the conditions set forth in Section 13.04 are satisfied
(hereinafter called Covenant Defeasance). For this purpose, such Covenant Defeasance means that
the Company may omit to comply with and shall have no liability in respect of any term, condition
or limitation set forth in any such specified Section (to the extent so specified in the case of
Section 5.01(4)), whether directly or indirectly by reason of any reference elsewhere herein to any
such Section or by reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and the Securities of such series shall be
unaffected thereby.
Section 13.04
Conditions to Defeasance or Covenant Defeasance
.
The following shall be the conditions to application of either Section 13.02 or Section 13.03
to the Outstanding Securities of any Defeasible Series:
55
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee that satisfies the requirements contemplated by Section 6.09 and agrees to
comply with the provisions of this Article XIII applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of Outstanding Securities of such series, (A) money in an
amount, or (B) U.S. Government Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a combination thereof, in each case
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, and
which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on the Securities of such series on the respective
Stated Maturities, in accordance with the terms of this Indenture and the Securities of such
series. As used herein, U.S. Government Obligation means any security that is (i) a direct
obligation of the United States of America for the payment of which full faith and credit of the
United States of America is pledged or (ii) an obligation of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer
thereof.
(2) In the case of an election under Section 13.02, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date first set forth
hereinabove, there has been a change in the applicable Federal income tax law, in either case (A)
or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be effected with respect to the
Securities of such series and will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit, Defeasance and discharge were
not to occur.
(3) In the case of an election under Section 13.03, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such
series will not recognize gain or loss for Federal income tax purposes as a result of the deposit
and Covenant Defeasance to be effected with respect to the Securities of such series and will be
subject to Federal income tax on the same amount, in the same manner and at the same times as would
be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers Certificate to the effect
that the Securities of such series, if then listed on any securities exchange, will not be delisted
as a result of such deposit.
(5) No Event of Default or event that (after notice or lapse of time or both) would become an
Event of Default shall have occurred and be continuing at the time of such deposit or, with regard
to any Event of Default or any such event specified in Sections 5.01(5) and (6), at
56
any time on or prior to the 90th day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting
interest within the meaning of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the Company is a party or by
which it is bound.
(8) The Company shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
(9) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act of
1940, as amended, unless such trust shall be qualified under such Act or exempt from regulation
thereunder.
Section 13.05
Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions
.
All money and U.S. Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.06, the
Trustee and any such other trustee are referred to collectively as the Trustee) pursuant to
Section 13.04 in respect of the Securities of any Defeasible Series shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities of such series and this
Indenture, to the payment, either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of Securities of such
series, of all sums due and to become due thereon in respect of principal and any premium and
interest, but money so held in trust need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.04 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
that by law is for the account of the Holders of Outstanding Securities.
Anything in this Article XIII to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 13.04 with respect to Securities of any Defeasible Series that,
in the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the amount thereof that
would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance
with respect to the Securities of such series.
57
Section 13.06
Reinstatement
.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article XIII with respect to the Securities of any series by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting such application,
then the Companys obligations under this Indenture and the Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to this Article XIII with respect
to Securities of such series until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 13.05 with respect to Securities of such series in
accordance with this Article XIII;
provided
,
however
, that if the Company makes any
payment of principal of or any premium or interest on any Security of such series following the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
Securities of such series to receive such payment from the money so held in trust.
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.
(Signature Page to Follow)
58
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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ALLEGHENY TECHNOLOGIES INCORPORATED
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By:
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Name:
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Title:
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THE BANK OF NEW YORK
MELLON,
as Trustee
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By:
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Name:
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Title:
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59
ALLEGHENY TECHNOLOGIES INCORPORATED
Certain Sections of this Indenture relating to
Sections 310 through 318(a), inclusive, of the
Trust Indenture Act of 1939:
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Trust Indenture
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Act Section
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Indenture Section
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§ 310
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(a)(1)
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6.10
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(a)(2)
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6.10
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(a)(5)
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6.10
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(b)
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6.08
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6.10
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(c)
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Not Applicable
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§ 311
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(a)
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6.11
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(b)
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6.11
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(c)
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Not Applicable
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§ 312
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(a)
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7.01
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7.02
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(b)
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7.02
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(c)
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7.02
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§ 313
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(a)
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6.06
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7.03
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(b)
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6.06
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7.03
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(c)
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6.06
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7.03
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(d)
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7.03
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§ 314
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(a)
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7.04
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(a)(4)
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1.01
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10.04
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(b)
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Not Applicable
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(c)(1)
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1.02
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(c)(2)
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1.02
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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1.02
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§ 315
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(a)
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6.01
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(b)
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6.05
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(c)
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6.01
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(d)
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6.01
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(e)
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5.14
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§ 316
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(a)
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1.01
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(a)(1)(A)
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5.02
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5.12
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Trust Indenture
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Act Section
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Indenture Section
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(a)(1)(B)
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5.13
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(a)(2)
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Not Applicable
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(b)
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5.08
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(c)
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1.04
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§ 317
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(a)(1)
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5.03
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(a)(2)
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5.04
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(b)
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10.03
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§ 318
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(a)
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1.07
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NOTE:
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This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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*
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The relevant provision will be included in Article X of this
Indenture or in a supplement thereto.
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Exhibit 4.6
ALLEGHENY TECHNOLOGIES INCORPORATED,
Issuer
and
THE BANK OF NEW YORK MELLON,
Trustee
INDENTURE
Dated as of
Subordinated Securities
Table of Contents
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Page
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
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1
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Section 1.01 Definitions
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1
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Section 1.02 Compliance Certificates and Opinions
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9
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Section 1.03 Form of Documents Delivered to Trustee
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9
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Section 1.04 Acts of Holders; Record Dates
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10
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Section 1.05 Notices, Etc., to Trustee and Company
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12
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Section 1.06 Notice to Holders; Waiver
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12
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Section 1.07 Conflict with Trust Indenture Act
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12
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Section 1.08 Effect of Headings and Table of Contents
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13
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Section 1.09 Successors and Assigns
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13
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Section 1.10 Separability Clause
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13
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Section 1.11 Benefits of Indenture
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13
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Section 1.12 Governing Law
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14
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Section 1.13 Legal Holidays
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14
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Section 1.14 Waiver of Jury Trial
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14
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Section 1.15 Force Majeure
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14
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ARTICLE II SECURITY FORMS
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14
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Section 2.01 Forms Generally
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14
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Section 2.02 Form of Face of Security
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15
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Section 2.03 Form of Reverse of Security
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17
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Section 2.04 Form of Legend for Global Securities
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20
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Section 2.05 Form of Trustees Certificate of Authentication
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20
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ARTICLE III THE SECURITIES
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21
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Section 3.01 Amount Unlimited; Issuable in Series
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21
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Section 3.02 Denominations
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24
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Section 3.03 Execution, Authentication, Delivery and Dating
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24
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Section 3.04 Temporary Securities
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25
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Section 3.05 Registration, Registration of Transfer and Exchange
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26
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Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities
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27
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i
Table of Contents
(continued)
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Page
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Section 3.07 Payment of Interest; Interest Rights Preserved
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28
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Section 3.08 Persons Deemed Owners
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29
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Section 3.09 Cancellation
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29
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Section 3.10 Computation of Interest
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30
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Section 3.11 CUSIP Numbers
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30
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ARTICLE IV SATISFACTION AND DISCHARGE
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30
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Section 4.01 Satisfaction and Discharge of Indenture
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30
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Section 4.02 Application of Trust Money
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31
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ARTICLE V REMEDIES
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31
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Section 5.01 Events of Default
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31
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Section 5.02 Acceleration of Maturity; Rescission and Annulment
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33
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Section 5.03 Collection and Suits for Enforcement by Trustee
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33
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Section 5.04 Trustee May File Proofs of Claim
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34
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Section 5.05 Trustee May Enforce Claims Without Possession of Securities
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34
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Section 5.06 Application of Money Collected
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35
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Section 5.07 Limitation on Suits
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35
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Section 5.08 Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert
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36
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Section 5.09 Restoration of Rights and Remedies
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36
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Section 5.10 Rights and Remedies Cumulative
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36
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Section 5.11 Delay or Omission Not Waiver
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36
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Section 5.12 Control by Holders
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37
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Section 5.13 Waiver of Past Defaults
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37
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Section 5.14 Undertaking for Costs
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37
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Section 5.15 Waiver of Usury, Stay or Extension Laws
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38
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ARTICLE VI THE TRUSTEE
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38
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Section 6.01 Duties of Trustee
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38
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Section 6.02 Rights of Trustee
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39
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Section 6.03 Individual Rights of Trustee
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40
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Section 6.04 Trustees Disclaimer
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40
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ii
Table of Contents
(continued)
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Page
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Section 6.05 Notice of Default
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40
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Section 6.06 Reports by Trustee to Holders
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41
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Section 6.07 Compensation and Indemnity
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41
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Section 6.08 Replacement of Trustee
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42
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Section 6.09 Successor Trustee by Merger, Etc
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43
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Section 6.10 Eligibility; Disqualification
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43
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Section 6.11 Preferential Collection of Claims against Company
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43
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ARTICLE VII HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
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43
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Section 7.01 Company to Furnish Trustee Names and Addresses of Holders
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43
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Section 7.02 Preservation of Information; Communications to Holders
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44
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Section 7.03 Reports by Trustee
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44
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Section 7.04 Reports by Company
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44
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ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
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45
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Section 8.01 When Company May Merge, Etc
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45
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Section 8.02 Successor Substituted
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45
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ARTICLE IX SUPPLEMENTAL INDENTURES
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46
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Section 9.01 Supplemental Indentures Without Consent of Holders
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46
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Section 9.02 Supplemental Indentures with Consent of Holders
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47
|
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Section 9.03 Execution of Supplemental Indentures
|
|
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48
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Section 9.04 Effect of Supplemental Indentures
|
|
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48
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Section 9.05 Conformity with Trust Indenture Act
|
|
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48
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Section 9.06 Reference in Securities to Supplemental Indentures
|
|
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49
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Section 9.07 Subordination Unimpaired
|
|
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49
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ARTICLE X COVENANTS
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|
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49
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Section 10.01 Payment of Securities
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|
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49
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Section 10.02 Maintenance of Office or Agency
|
|
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49
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Section 10.03 Money for Securities Payments to Be Held in Trust
|
|
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50
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|
Section 10.04 Compliance Certificate; Notice of Default
|
|
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51
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Section 10.05 Corporate Existence
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51
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Section 10.06 Waiver of Certain Covenants
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51
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iii
Table of Contents
(continued)
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Page
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ARTICLE XI REDEMPTION OF SECURITIES
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52
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Section 11.01 Applicability of Article
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52
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Section 11.02 Election to Redeem; Notice to Trustee
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52
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Section 11.03 Selection by Trustee of Securities to Be Redeemed
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52
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Section 11.04 Notice of Redemption
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53
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Section 11.05 Deposit of Redemption Price
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53
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Section 11.06 Securities Payable on Redemption Date
|
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54
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Section 11.07 Securities Redeemed in Part
|
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54
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ARTICLE XII SINKING FUNDS
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55
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Section 12.01 Applicability of Article
|
|
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55
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Section 12.02 Satisfaction of Sinking Fund Payments with Securities
|
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55
|
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Section 12.03 Redemption of Securities for Sinking Fund
|
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55
|
|
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ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE
|
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55
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Section 13.01 Companys Option to Effect Defeasance or Covenant Defeasance
|
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56
|
|
Section 13.02 Defeasance and Discharge
|
|
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56
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Section 13.03 Covenant Defeasance
|
|
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56
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|
Section 13.04 Conditions to Defeasance or Covenant Defeasance
|
|
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57
|
|
Section 13.05 Deposited Money and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provisions
|
|
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58
|
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Section 13.06 Reinstatement
|
|
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59
|
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ARTICLE XIV SUBORDINATION OF SECURITIES
|
|
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59
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Section 14.01 Securities Subordinate to Senior Indebtedness
|
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59
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Section 14.02 Payment Over of Proceeds Upon Dissolution, Etc
|
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60
|
|
Section 14.03 Prior Payment to Senior Indebtedness Upon Acceleration of
Securities
|
|
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61
|
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Section 14.04 No Payment When Senior Indebtedness in Default
|
|
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61
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Section 14.05 Payment Permitted If No Default
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62
|
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Section 14.06 Subrogation to Rights of Holders of Senior Indebtedness
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|
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62
|
|
Section 14.07 Provisions Solely to Define Relative Rights
|
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62
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Section 14.08 Trustee to Effectuate Subordination
|
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63
|
|
iv
Table of Contents
(continued)
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|
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Page
|
Section 14.09 No Waiver of Subordination Provisions
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|
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63
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Section 14.10 Notice to Trustee
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63
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Section 14.11 Reliance on Judicial Order or Certificate of Liquidating Agent
|
|
|
64
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|
Section 14.12 Trustee Not Fiduciary for Holders of Senior Indebtedness
|
|
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64
|
|
Section 14.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustees Rights
|
|
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64
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|
Section 14.14 Article Applicable to Paying Agents
|
|
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65
|
|
Section 14.15 Certain Conversions Deemed Payment
|
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65
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Section 14.16 Trust Moneys Not Subordinated
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65
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v
INDENTURE, dated as of
, between Allegheny Technologies Incorporated, a
corporation duly organized and existing under the laws of Delaware (herein called the Company),
having its principal office as of the date hereof at 1000 Six PPG Place, Pittsburgh, PA 15222, and
The Bank of New York Mellon, a New York banking corporation, as Trustee (herein called the
Trustee).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the Securities), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid and legally binding agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01
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 GAAP with respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of such computation;
(4) the words Article and Section refer to an Article and Section, respectively, of this
Indenture, unless the context otherwise indicates;
1
(5) 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; and
(6) Certain terms used principally in Articles III, V, XII, XIII and XIV, are defined in those
Articles.
Act, when used with respect to any Holder, has the meaning specified in Section 1.04.
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.
Bankruptcy Default has the meaning assigned to such term in Section 5.01.
Bankruptcy Law means Title 11, U.S. Code or any similar Federal, state or foreign law for
the relief of debtors.
Board of Directors means either the board of directors of the Company or any duly authorized
committee of that board.
Business Day, when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close.
Capital Lease Obligation means, at any time any determination thereof is made, the amount of
the liability in respect of a capital lease that would at such time be so required to be
capitalized on the balance sheet in accordance with GAAP.
Commission means the Securities and Exchange Commission, from time to time constituted,
created under the Exchange Act 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.
Company means the Person named as the Company in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor Person.
Company Request or Company Order means a written request or order signed in the name of
the Company by its Chairman of the Board, any Vice Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
2
Corporate
Trust Office means the principal office of the Trustee in New York, New York at
which at any particular time its corporate trust business shall be administered, which office as of
the date hereof is located at 101 Barclay Street 8th Floor
West, New York, NY 10286, Attn:
Corporate Trust Division Corporate Finance Unit, or such other
address as the Trustee may designate from time to time by notice to
the Company, or principal corporate trust office of any successor
Trustee (or such other address as such Successor Trustee may
designate from time to time by notice to the Company).
Corporation means a corporation, association, company, joint-stock company or business
trust.
Covenant Defeasance has the meaning specified in Section 13.03.
Defaulted Interest has the meaning specified in Section 3.07.
Defeasance has the meaning specified in Section 13.02.
Defeasible Series has the meaning specified in Section 13.01.
Depositary means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated by Section 3.01.
Establishment Action shall mean:
(i) a resolution duly adopted by the Companys Board of Directors establishing one or more
series of Securities, authorizing the issuance of any Security and/or authorizing any other action
that may be taken by the Company in connection with this Indenture or the Securities, or
(ii) a resolution or action by a committee, officer or employee of the Company, establishing
one or more series of Securities, authorizing the issuance of any Security and/or authorizing any
other action that may be taken by the Company in connection with this Indenture or the Securities,
in each case, pursuant to a resolution duly adopted by the Companys Board of Directors.
Event of Default has the meaning specified in Section 5.01.
Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, and
any statute successor thereto.
GAAP means generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Financial Accounting Standards Board or in such other statements
by such other entity as have been approved by a significant segment of the accounting profession.
3
Global Security means a Security that evidences all or part of the Securities of any series
and is authenticated and delivered to, and registered in the name of, the Depositary for such
Securities or a nominee thereof.
Guaranty means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including,
without limitation, letters of credit and reimbursement agreements in respect thereof), or all or
any part of any Indebtedness.
Hedging Obligations means, with respect to any Person, the Obligations of such Person under
interest rate swap agreements, interest rate cap agreements, and interest rate collar agreements,
and other agreements or arrangements designed to protect such Person against fluctuations in
interest rates.
Holder means a Person in whose name a Security is registered in the Security Register.
Indebtedness means, with respect to any Person, any indebtedness of such Person, whether or
not contingent, in respect of borrowed money or evidenced by bonds, notes, debentures of similar
instruments or letters of credit (or reimbursement agreements in respect thereof) or representing
Capital Lease Obligations or the balance deferred and unpaid of the purchase price of any property
or representing any Hedging Obligations, except any such balance that constitutes an accrued
expense or trade payable and also includes, to the extent not otherwise included, the Guaranty of
any indebtedness of such Person or any other Person.
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, including, for all purposes of this instrument, and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term Indenture
shall also include the terms of particular series of Securities established as contemplated by
Section 3.01.
Interest, when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
Interest Payment Date, when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.
Maturity, when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
Notice of Default means a written notice of the kind specified in Section 5.01(4).
4
Obligations means any principal, premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities.
Officers Certificate means a certificate signed by the Chairman of the Board, a Vice
Chairman of the Board, the Chief Executive Officer, 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) who is acceptable to the Trustee.
Original Issue Discount Security means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.02.
Outstanding, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture,
except
:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(2) 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 Securities;
provided
that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section 13.02; and
(4) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided
,
however
, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (A) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon acceleration of the
Maturity thereof to such date pursuant to Section 5.02, (B) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the U.S. dollar
equivalent, determined in the manner provided as contemplated by Section 3.01 on the date of
original issuance of such Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the U.S.
5
dollar equivalent on the date of original issuance of such Security of the amount determined as
provided in clause (A) above) of such Security, and (C) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, unless the Company or
any such obligor or Affiliate of the Company or such other obligor
owns all of such Securities, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgees right so
to act with respect to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
Paying Agent means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.
Person means any individual, corporation, partnership, joint venture, limited liability
company, joint stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Place of Payment, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 3.01.
Predecessor Security of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
Redemption Date, when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
Redemption Price, when used with respect to any 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 on the Securities
of any series means the date specified for that purpose as contemplated by Section 3.01.
Responsible
Officer, when used with respect to the Trustee, means any officer assigned
to the Corporate trust Division Corporate Finance Unit
(or any other successor division or unit) of the
Trustee located at the Corporate Trust Office of the Trustee
who shall have direct responsibility for the administration of this
Indenture and, for purposes of Sections 5.12 and 6.01(c)(2) and
the last sentence of Section 6.05 hereof, 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.
6
Securities has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
Securities Act means the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
Security Register and Security Registrar have the respective meanings specified in Section
3.05.
Senior Indebtedness means the principal of (and premium, if any), accrued interest
(including interest accruing on or after the filing in bankruptcy or reorganization relating to the
Company whether or not a claim for post-filing interest is allowed in such proceedings), fees,
charges, expenses, reimbursement obligations, guarantees and other amounts owing with respect to
all Indebtedness of the Company (including Indebtedness of others guaranteed by the Company) other
than the Securities, in any such case whether outstanding on the date of this Indenture or the date
Securities of any series are issued hereunder or thereafter created, incurred or assumed, unless in
any case in the instrument creating or evidencing any such Indebtedness or obligation or pursuant
to which the same is outstanding it is provided that such Indebtedness or obligation is not
superior in right of payment to the Securities or it is provided that such Indebtedness or
obligation is subordinated to senior Indebtedness to substantially the same extent as the
Securities are subordinated to Senior Indebtedness.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.07.
Stated Maturity, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed;
provided
,
however
, that in the event the Trust
Indenture Act of 1939 is amended after such date, Trust Indenture Act means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, Trustee as used with respect to
the Securities of any series shall mean each Trustee with respect to Securities of that series.
U.S. Government Obligations has the meaning specified in Section 13.04.
7
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.
8
Section 1.02
Compliance Certificates and Opinions
.
Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officers Certificate, if to be given by an officer of the Company, or
an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than the Officers Certificate
required by the first paragraph of Section 10.04) 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
(4) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
Section 1.03
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 or any subsidiary of the Company stating that the information with respect to such
factual matters is in the possession of the Company or any subsidiary 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.
9
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 1.04
Acts of Holders; Record Dates
.
Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted 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 Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
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 of 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.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.
The Company may, in the circumstances permitted by the Trust Indenture Act, set any day as the
record date for the purpose of determining the Holders of Outstanding Securities of any series
entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given or taken by Holders of Securities
of such series. With regard to any record date set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date (or their duly appointed agents),
and only such Persons, shall be entitled to give or take the relevant action, whether or not such
Holders remain Holders after such record date. With regard to any action that may be given or taken
hereunder only by Holders of a requisite principal amount of Outstanding Securities of any series
(or their duly appointed agents) and for which a record date is set pursuant to this paragraph, the
Company may, at its option, set an expiration date after
10
which no such action purported to be given or taken by any Holder shall be effective hereunder
unless given or taken on or prior to such expiration date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date (or their duly appointed
agents). On or prior to any expiration date set pursuant to this paragraph, the Company may, on one
or more occasions at its option, extend such date to any later date. Nothing in this paragraph
shall prevent any Holder (or any duly appointed agent thereof) from giving or taking, after any
such expiration date, any action identical to, or, at any time, contrary to or different from, the
action or purported action to which such expiration date relates, in which event the Company may
set a record date in respect thereof pursuant to this paragraph. Nothing in this paragraph shall be
construed to render ineffective any action taken at any time by the Holders (or their duly
appointed agents) of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is so taken. Notwithstanding the foregoing or the Trust Indenture
Act, the Company shall not set a record date for, and the provisions of this paragraph shall not
apply with respect to, any notice, declaration or direction referred to in the next paragraph.
The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 5.02, if an Event of Default
with respect to Securities of such series has occurred and is continuing and the Trustee shall not
have given such a declaration to the Company, (iii) any request to institute proceedings referred
to in Section 5.07(2) or (iv) any direction referred to in Section 5.12, in each case with respect
to Securities of such series. Promptly after any record date is set pursuant to this paragraph, the
Trustee shall notify the Company and the Holders of Outstanding Series of such series of any such
record date so fixed and the proposed action. The Holders of Outstanding Securities of such series
on such record date (or their duly appointed agents), and only such Persons, shall be entitled to
join in such notice, declaration or direction, whether or not such Holders remain Holders after
such record date;
provided
that, unless such notice, declaration or direction shall have
become effective by virtue of Holders of the requisite principal amount of Outstanding Securities
of such series on such record date (or their duly appointed agents) having joined therein on or
prior to the 90th day after such record date, such notice, declaration or direction shall
automatically and without any action by any Person be cancelled and of no further effect. Nothing
in this paragraph shall be construed to prevent a Holder (or a duly appointed agent thereof) from
giving, before or after the expiration of such 90-day period, a notice, declaration or direction
contrary to or different from, or, after the expiration of such period, identical to, the notice,
declaration or direction to which such record date relates, in which event a new record date in
respect thereof shall be set pursuant to this paragraph. Nothing in this paragraph shall be
construed to render ineffective any notice, declaration or direction of the type referred to in
this paragraph given at any time to the Trustee and the Company by Holders (or their duly appointed
agents) of the requisite principal amount of Outstanding Securities of the relevant series on the
date such notice, declaration or direction is so given.
Without limiting the foregoing, a Holder entitled hereunder to give or take any action
hereunder with regard to any particular Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such principal amount.
11
Section 1.05
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 (which may be via facsimile) to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Finance Unit, 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.
Section 1.06
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 Security Register, not later than the latest date (if any), and not earlier than the earliest
date (if any), 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 1.07
Conflict with Trust Indenture Act
.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be. Wherever this Indenture refers
to a provision of the Trust Indenture Act, such provision is incorporated by reference in and made
a part of this Indenture.
12
The following Trust Indenture Act terms used in this Indenture have the following meanings:
commission means the United States Securities and Exchange Commission;
indenture securities means the Securities;
indenture security holder means a Holder;
indenture to be qualified means this Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the indenture securities means the Company and any other obligor on the
Securities.
All other Trust Indenture Act terms used in this Indenture that are defined by the Trust
Indenture Act, defined by the Trust Indenture Act referenced to another statute or defined by any
Commission rule and not otherwise defined herein have the meanings defined to them thereby.
Section 1.08
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 1.09
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 1.10
Separability Clause
.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.11
Benefits of Indenture
.
Nothing in this Indenture or in the 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, any benefit or any legal or equitable right, remedy or claim under this Indenture.
13
Section 1.12
Governing Law
.
This Indenture and the Securities shall be governed by and construed in accordance with the
law of the State of New York.
Section 1.13
Legal Holidays
.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of the Securities of any
series which specifically states that such provision shall apply in lieu of this Section)) payment
of interest or principal (and premium, if any) need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the intervening period.
Section 1.14
Waiver of Jury Trial
.
EACH OF THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE HEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 1.15
Force Majeure
.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
ARTICLE II
SECURITY FORMS
Section 2.01
Forms Generally
.
The Securities of each series shall be in substantially the form set forth in this Article, or
in such other form as shall be established by or pursuant to an Establishment Action 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
14
thereon as may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities, as evidenced by
their execution of the Securities. If the form of Securities of any series is established by action
taken pursuant to an Establishment Action, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at
or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication
and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 2.02
Form of Face of Security
.
[Insert any legend required by the Internal Revenue Code and the regulations thereunder.]
[Insert Global Security legend if required.]
ALLEGHENY TECHNOLOGIES INCORPORATED
Allegheny Technologies Incorporated, a corporation duly organized and existing under the laws
of Delaware (herein called the Company, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
Dollars on
[
if the Security is to bear interest
prior to Maturity, insert
, and to pay interest thereon from
or from the most recent Interest Payment
Date to which interest has been paid or
duly provided for, semi-annually on
and
in each year, commencing
, at the
rate of
%
per annum, until the principal hereof is paid or made available for payment [
if applicable, insert
, and at the rate of
% per annum on any overdue principal and premium
and on any overdue installment of interest]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be the
or
(whether or
not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the
15
Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].
[
If the Security is not to bear interest prior to Maturity, insert
The principal of
this Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this
Security shall bear interest at the rate of
% per annum, which shall
accrue from the date of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on demand. Any such
interest on any overdue principal that is not so paid on demand shall bear interest at the rate of
% per annum, which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for, and such interest
shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [
if applicable, insert
any
such] interest on this Security will be made at the office or agency of the Company maintained for
that purpose in
, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment of public and
private debts [
if applicable, insert
;
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 Security Register] [
if applicable,
insert
;
provided
,
however
, that any such payment in respect of a Global
Security shall be made in same-day funds to the applicable Depositary].
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
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ALLEGHENY TECHNOLOGIES INCORPORATED
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By:
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Name:
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Title:
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[Insert Trustees certificate of authentication.]
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Section 2.03
Form of Reverse of Security
.
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture, dated as of
, 20
(herein called the Indenture), between
the Company and
, as Trustee (herein called the
Trustee, which term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [
if applicable, insert
, limited in aggregate principal
amount to $
].
[If applicable, insert legend regarding conversion procedures.]
[
If applicable, insert
The Securities of this series are subject to redemption upon
not less than 30 nor more than 60 days notice by mail, [
if applicable, insert
(1) on
in any year
commencing with the year
and ending with the year
through operation of the sinking fund for this series at a Redemption Price equal to 100%
of the principal amount, and (2)] at any time [
if applicable, insert
on or after
, 20
], as a whole or in part,
at the election of the Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [
if applicable, insert
on or before
,
%, and if redeemed] during the 12-month
period beginning
of the years indicated,
and thereafter at a Redemption Price equal to
% of
the principal amount, together in the case of any such redemption [
if applicable, insert
(whether through operation of the sinking fund or otherwise)] with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.
[
If applicable, insert
The Securities of this series are subject to redemption upon
not less than 30 nor more than 60 days notice by mail, (1) on
in any year commencing with the year
and ending with the
year
through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [
if applicable,
insert
on or after
], as a whole or in part,
at the election of the Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount) set
17
forth in the table below: If redeemed during the 12-month period beginning
of the years indicated,
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Redemption Price
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Redemption Price For
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For Redemption
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Redemption Otherwise
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Through Operation
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Than Through Operation
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Year
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of the Sinking Fund
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of the Sinking Fund
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and thereafter at a Redemption Price equal to
% of the principal
amount, together in the case of any such redemption (whether through operation of the sinking fund
or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.]
[
If applicable, insert
The sinking fund for this series provides for the redemption
on
in each year beginning with the year
and ending with the year
of [
if applicable,
insert
not less than $
(mandatory sinking fund) and not more than] $
aggregate
principal amount of Securities of this series. Securities of this series acquired or redeemed by
the Company otherwise than through [
if applicable, insert
mandatory] sinking fund
payments [
if applicable, insert
and Securities surrendered for conversion] may be
credited against subsequent [
if applicable, insert
mandatory] sinking fund payments
otherwise required to be made [
if applicable, insert
in the inverse order in which they
become due].
[
If the Security is subject to redemption of any kind, insert
In the event of
redemption of this Security in part only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
The indebtedness evidenced by this Security is, to the extent provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take action as may be
necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee
his attorney-in-fact for any and all such purposes.
[
If applicable, insert
The Indenture contains provisions for defeasance at any time
of [(1) the entire indebtedness of this Security or (2)] certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with certain conditions set
forth in the Indenture.]
[
If the Security is not an Original Issue Discount Security, insert
If an Event of
Default with respect to Securities of this series shall occur and be continuing, the principal of
the
18
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[
If the Security is an Original Issue Discount Security, insert
If an Event of
Default with respect to Securities of this series shall occur and be continuing, an amount of
principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture. Such amount shall be equal to
insert formula for
determining the amount
. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest all of the Companys obligations
in respect of the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
reasonable indemnity and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted
by the Holder of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed herein.
Subject to the rights of holders of Senior Indebtedness, as set forth in the Indenture, no
other reference herein to the Indenture and no other provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of (and premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
19
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any Place of Payment, duly
endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company
and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company or the Security Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this 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 this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
Section 2.04
Form of Legend for Global Securities
.
Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:
This Security is a Global Security within the meaning of the Indenture hereinafter referred to
and is registered in the name of a Depositary or a nominee thereof. This Security may not be
transferred to, or registered or exchanged for Securities registered in the name of, any Person
other than the Depositary or a nominee thereof and no such transfer may be registered, except in
the limited circumstances described in the Indenture. Every Security authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of, this Security shall be a Global
Security subject to the foregoing, except in such limited circumstances.
Section 2.05
Form of Trustees Certificate of Authentication
.
The Trustees certificates of authentication shall be in substantially the following form:
20
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON,
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as Trustee
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By:
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Authorized Signatory
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Dated:
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ARTICLE III
THE SECURITIES
Section 3.01
Amount Unlimited; Issuable in Series
.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to an Establishment Action and, subject to Section 3.03, set forth, or determined in the manner
provided, in an Officers Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series, including CUSIP Numbers (which shall
distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which, pursuant
to Section 3.03, are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be payable, if other
than the Person in whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities of the series is payable;
(5) the rate or rates at which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue, the Interest Payment Dates on which any
21
such interest shall be payable and the Regular Record Date for any interest payable on any Interest
Payment Date;
(6) the place or places where the principal of and any premium and interest on Securities of
the series shall be payable;
(7) the period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or in part, at the option
of the Company;
(8) the obligation, if any, of the Company to redeem or purchase Securities of the series
pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the terms and conditions upon
which Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof, the denominations
in which Securities of the series shall be issuable;
(10) the currency, currencies or currency units in which payment of the principal of and any
premium and interest on any Securities of the series shall be payable if other than the currency of
the United States of America and the manner of determining the equivalent thereof in the currency
of the United States of America for purposes of the definition of Outstanding in Section 1.01;
(11) if the amount of payments of principal of or any premium or interest on any Securities of
the series may be determined with reference to an index, the manner in which such amounts shall be
determined;
(12) if the principal of or any premium or interest on any Securities of the series is to be
payable, at the election of the Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any premium and interest on
Securities of such series as to which such election is made shall be payable, and the periods
within which and the terms and conditions upon which such election is to be made;
(13) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.02;
(14) if applicable, that the provisions of Article IV shall not apply to the Securities of the
series;
(15) if applicable, that the Securities of the series shall be subject to either or both of
Defeasance or Covenant Defeasance as provided in Article XIII; provided that no series of
22
Securities that is convertible into or exchangeable for any other securities pursuant to Section
3.01(16) shall be subject to Defeasance pursuant to Section 13.02;
(16) if and as applicable, that the Securities of the series shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the Depositary or Depositaries
for such Global Security or Global Securities and any circumstances other than those set forth in
Section 3.05 in which any such Global Security may be transferred to, and registered and exchanged
for Securities registered in the name of, a Person other than the Depositary for such Global
Security or a nominee thereof and in which any such transfer may be registered;
(17) the terms and conditions, if any, pursuant to which the Securities are convertible into
or exchangeable for any other securities;
(18) any addition to or change in the covenants set forth in Article X which applies to
Securities of the series; and
(19) any other terms of the series (which terms shall not be inconsistent with the provisions
of this Indenture, except as permitted by Section 9.01(5)).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to an Establishment Action referred to above
and (subject to Section 3.03) set forth, or determined in the manner provided, in the Officers
Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to an Establishment
Action, a copy of an appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Officers Certificate setting forth the terms of the series.
Subject to any limitation imposed in accordance with paragraph (2) above, the Company may,
from time to time, by an Establishment Action and subject to compliance with any other applicable
provisions of this Indenture, without the consent of the Holders, create and issue pursuant to this
Indenture additional securities of any series of Securities (
Add On Securities
) having
terms and conditions identical to those of such series of Outstanding Securities, except that such
Add On Securities:
(i) may have a different issue date from such series of Outstanding Securities;
(ii) may have a different amount of interest payable on the first Interest Payment Date after
issuance than is payable on such series of Outstanding Securities; and
(iii) may have terms specified in such Establishment Action for such Add On Securities making
appropriate adjustments to this Article III applicable to such Add On Securities in order to
conform to and ensure compliance with the Securities Act (or applicable securities laws) which are
not adverse in any material respect to the Holder of any Outstanding
23
Securities (other than such Add On Securities) and which shall not affect the rights or duties of
the Trustee.
Section 3.02
Denominations
.
The Securities of each series shall be issuable only in registered form without coupons in
such denominations as shall be specified as contemplated by Section 3.01. In the absence of any
such specified denomination with respect to the Securities of any series, the Securities of such
series shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.03
Execution, Authentication, Delivery and Dating
.
The Securities shall be executed on behalf of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President, one of its Vice Presidents or its Treasurer, and
attested by its Secretary or one of its Assistant Secretaries or by its Chief Financial Officer.
The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any Series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the series have been established in or
pursuant to one or more Establishment Actions as permitted by Sections 2.01 and 3.01, in
authenticating such Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be provided with, and (subject to Section 6.01)
shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by an Establishment Action as
permitted by Section 2.01, that such form has been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities have been established by an Establishment Action as
permitted by Section 3.01, that such terms have been established in conformity with the provisions
of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors rights and to general
equity principles.
24
If such form or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustees own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers Certificate otherwise required pursuant to Section 3.01 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
time of authentication of each Security of such series if such documents are delivered at or prior
to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09,
for all purposes of this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04
Temporary Securities
.
Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor. Until so exchanged the temporary Securities
25
of any series shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series and tenor.
Section 3.05
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 of the Company in a Place
of Payment being herein sometimes collectively referred to as the Security Register) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby appointed
Security Registrar for the purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security of any series at the office or
agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of a like aggregate principal
amount and tenor.
At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company or Security Registrar may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving
any transfer.
The Company shall not be required (1) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of that series selected for redemption
under Section 11.03 and ending at the close of business on the day of such mailing, or (2) to
26
register the transfer of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision in this Indenture, no Global Security may be transferred
to, or registered or exchanged for Securities registered in the name of, any Person other than the
Depositary for such Global Security or any nominee thereof, and no such transfer may be registered,
unless (1) such Depositary (A) notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security and the Company does not appoint
a successor Depositary within 90 days after receiving such notice or (B) has ceased to be a clearing agency registered under the
Exchange Act and the Company does not appoint a successor Depositary
within 90 days after becoming aware that the Depositary has ceesed to
be registered as a clearing agency, (2) the Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so transferable, registrable and exchangeable, and such transfers shall be
registrable, (3) there shall have occurred and be continuing an Event of Default with respect to
the Securities evidenced by such Global Security or (4) there shall exist such other circumstances,
if any, as have been specified for this purpose as contemplated by Section 3.01. Notwithstanding
any other provision in this Indenture, a Global Security to which the restriction set forth in the
preceding sentence shall have ceased to apply may be transferred only to, and may be registered and
exchanged for Securities registered only in the name or names of, such Person or Persons as the
Depositary for such Global Security shall have directed and no transfer thereof other than such a
transfer may be registered.
Every Security authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, a Global Security to which the restriction set forth in the first sentence of
the preceding paragraph shall apply, whether pursuant to this Section, Section 3.04, 3.06, 9.06 or
11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global
Security.
Section 3.06
Mutilated, Destroyed, Lost and Stolen Securities
.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed
27
in relation thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this Section in exchange for any mutilated
Security or in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 3.07
Payment of Interest; Interest Rights Preserved
.
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called Defaulted Interest) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series and the date of
the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the 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 of Securities of such series at
his address as it appears in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such
28
Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any series in
any other lawful manner not inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 3.08
Persons Deemed Owners
.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of and
any premium and (subject to Section 3.07) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
Owners of beneficial interests in the Securities evidenced by a Global Security will not be
entitled to any rights under this Indenture with respect to such Global Security, and the
Depositary or its nominee may be treated by the Company and the Trustee and any agent of the
Company or the Trustee, as the owner and Holder of such Global Security for all purposes
whatsoever. None of the Company, the Trustee or any other agent of the Company or of the Trustee
shall have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests. None of the
Company, the Trustee, any agent of the Company or of the Trustee shall have any responsibility or
liability to any Person for any acts or omissions of the Depositary or its nominee in respect of a
Global Security, for the records of any such Depositary, including records in respect of beneficial
ownership interests in respect of such Global Security, for any transactions between such
Depositary and any participant or indirect participant in such Depositary or between or among such
Depositary, any participant or indirect participant in such Depositary and/or any Holder or owner
of a beneficial interest in such Global Security, or for any transfers of beneficial interests in
any such Global Security. Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or its nominee or impair, as between the Depositary or
its nominee and such owners of beneficial interests, the operation of customary practices governing
the exercise of the rights of the Depositary or its nominee as Holder of any Global Security.
Section 3.09
Cancellation
.
All Securities surrendered for payment, redemption, registration of transfer or exchange or
conversion or for credit against any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by
the Trustee in its customary manner.
29
Section 3.10
Computation of Interest
.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section 3.11
CUSIP
Numbers.
The
Company in issuing the Securities may use CUSIP,
ISIN and other similar numbers (if then generally in use), and,
if so, the Trustee shall use CUSIP,
ISIN and other similar numbers in notices of redemption as a convenience to Holders;
provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any changes in the CUSIP,
ISIN and other similar numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01
Satisfaction and Discharge of Indenture
.
Unless otherwise specified with respect to a series of Securities in accordance with Section
3.01, this Indenture shall upon Company Request cease to be of further effect (except as to any
surviving rights of conversion, registration of transfer or exchange of Securities herein expressly
provided for), and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than (i) Securities
which have been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 3.06 and (ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust) have been delivered to the Trustee for cancellation; or
(B) all such Securities 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
30
(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 such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of such deposit (in the case
of 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;
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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 6.07, and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under
Section 4.02 shall survive such satisfaction and discharge.
Section 4.02
Application of Trust Money
.
All money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and
applied by it, in accordance with the provisions of the Securities 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
any premium and interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
Section 5.01
Events of Default
.
Event of Default, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article XIV 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 Security of that series when it becomes
due and payable, and continuance of such default for a period of 30 days; or
31
(2) default in the payment of the principal of (or premium, if any, on) any Security of that
series at its Maturity;
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series, and continuance of such default for a period of 30 days;
(4) default in the performance, or breach, of any covenant or warranty of the Company 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 or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating that such notice is a
Notice of Default hereunder;
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company in an involuntary case or proceeding under any applicable
Bankruptcy Law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or
in respect of the Company under any applicable Federal or State law, or appointing a custodian,
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 for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days;
(6) the commencement by the Company of a voluntary case or proceeding under any applicable
Bankruptcy Law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other 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 (an event of default specified in clause (5) or (6), a Bankruptcy Default); or
(7) any other Event of Default provided with respect to Securities of that series.
Section 5.02
Acceleration of Maturity; Rescission and Annulment
.
If an Event of Default, other than a Bankruptcy Default, with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the
32
Holders of not less than 25% in principal amount of the Outstanding Securities of that series may
declare the principal amount (or, if any of the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that 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 amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
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 Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have
become due otherwise than by such declaration of acceleration and any interest thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
If
a Bankruptcy Default occurs, the principal of and accrued but unpaid interest on all
Securities then outstanding will become immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
Section 5.03
Collection and Suits for Enforcement by Trustee
.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
33
(2) default is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal and any premium
and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, 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 an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem necessary 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 5.04
Trustee May File Proofs of Claim
.
In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder 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 6.07.
No provision of this Indenture 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 Securities 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;
provided
,
however
, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a creditors or other
similar committee.
Section 5.05
Trustee May Enforce Claims Without Possession of Securities
.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee
34
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 Trustee, its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 5.06
Application of Money Collected
.
Subject
to Article XIV, any money collected by the Trustee pursuant to
this Article, and any money or other property distributable in
respect of the Companys obligations under this Indenture after
an Event of Default, 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 any premium or interest, upon presentation of
the 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 (including any
predecessor Trustee) under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and
interest on the Securities 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 Securities for principal and any premium and interest, respectively; and
THIRD: To the Company.
Section 5.07
Limitation on Suits
.
No Holder of any 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 with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that
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 satisfactory to it
against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities
of that series;
35
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 5.08
Unconditional Right of Holders to Receive Principal, Premium and Interest
.
Notwithstanding any other provision in this Indenture, but subject to Article XIV, the Holder
of any Security shall have the right, which is absolute and unconditional, to receive payment of
the principal of and any premium and (subject to Section 3.07) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
Section 5.09
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 5.10
Rights and Remedies Cumulative
.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.06, 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 not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 5.11
Delay or Omission Not Waiver
.
No delay or omission of the Trustee or of any Holder of any Securities 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.
36
Section 5.12
Control by Holders
.
The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series,
provided
that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) subject to the provisions of Section 6.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee in good faith shall, by a Responsible Officer or Officers
of the Trustee, determine that the proceedings so directed would involve the Trustee in personal
liability.
Section 5.13
Waiver of Past Defaults
.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of such
series, or
(2) in respect of a covenant or provision hereof which under Article IX cannot be modified or
amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14
Undertaking for Costs
.
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, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, including reasonable attorneys fees and expenses, in
the manner and to the extent provided in the Trust Indenture Act;
provided
that neither
this Section nor the Trust Indenture Act shall apply to any suit instituted by the Trustee, to any
suit instituted by any Holders of the Securities, or group of Holders of the Securities, holding in
the aggregate more than 10% of principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder of the Outstanding Securities for the enforcement of the payment
of principal of or interest on, or the conversion of, any Outstanding Securities held by such
Holder,
37
on or after the respective due dates expressed in such Outstanding Securities; and
provided
,
further
, that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company.
Section 5.15
Waiver of Usury, 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
usury, 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.
ARTICLE VI
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and covenants and
agrees to perform the same, as herein expressed.
Section 6.01
Duties of Trustee
.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are specifically set forth in this
Indenture and no others, and no covenants or obligations shall be implied in or read into
this Indenture.
(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. However, 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 substantially conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts, statements, opinions or
conclusions stated therein).
38
(c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) This
paragraph does not limit the effect of paragraph (b) or (d) of this Section 6.01.
(2) The Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts.
(3) The Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 5.12.
(d) 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 to
take or omit to take any action under this Indenture.
(e) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c), (d) and (f) of this Section 6.01.
(f) The
Trustee shall not be liable for interest on, or for investment of, any assets received by it except as the
Trustee may agree in writing with the Company. Assets held in trust by the Trustee need not be
segregated from other assets except to the extent required by law.
Section 6.02
Rights of Trustee
.
Subject to Section 6.01:
(a) The Trustee may conclusively rely on any document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in any document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate
or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The
Trustee shall not be liable for any action it takes, suffers to exist or omits to take in good faith
which it believes to be authorized or within its rights or powers.
(e) 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, or other paper or document, but the Trustee, in its discretion,
39
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 at the
sole cost of the Company and shall incur no liability or additional liability of any kind by reason
of such investigation.
(f) The Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection of any action taken,
suffered or omitted by in hereunder in good faith and in reliance thereon.
(g) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.
(h) 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 security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(i) The Trustee shall not be deemed to have notice of any default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture.
(j) The Trustee may request that the Company deliver an Officers Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers Certificate may be signed by any person
authorized to sign an Officers Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
(k) Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for
special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but
not limited to loss of profit), even if the Trustee has been advised as to the likelihood of such
loss or damage and regardless of the form of action.
Section 6.03
Individual Rights of Trustee
.
The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent or Security Registrar may do the same with like
rights. However, the Trustee must comply with Sections 6.08, 6.09 and 6.10.
Section 6.04
Trustees Disclaimer
.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities and it shall not be accountable for the Companys use of the proceeds from the
Securities, and it shall not be responsible for any statement in the Securities, other than the
Trustees certificate of authentication, all of which statements shall be taken as the statements of the Company, or the use or application of any funds received by a
Paying Agent other than the Trustee.
Section 6.05
Notice of Default
.
If an Event of Default with respect to Securities of any series occurs and is continuing and
if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Holder of
Securities of such series notice of the uncured Event of Default within 90 days after such
40
Event of Default occurs. Except in the case of an Event of Default in payment of principal (or
premium, if any) of, or interest on, any Security, the Trustee may withhold the notice if and so
long as a Responsible Officer in good faith determines that withholding the notice is in the
interest of the Holders of Securities of such series.
Section 6.06
Reports by Trustee to Holders
.
Within 60 days after each February 15 beginning with the February 15 following the date of
this Indenture, the Trustee shall mail to each Holder a brief report dated as of such February 15
that complies with Trust Indenture Act Section 313(a) if such report is required by such Trust
Indenture Act Section 313(a). The Trustee also shall comply with Trust Indenture Act Sections
313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if the Securities of any series
become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Holders shall be mailed to the Company and
filed with the Commission and each stock exchange, if any, on which the Securities are listed.
Section 6.07
Compensation and Indemnity
.
The Company shall pay to the Trustee from time to time such compensation for its services as
the Company and the Trustee shall from time to time agree in writing. The Trustees compensation
shall not be limited by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses and advances incurred
or made by it. Such expenses shall include the reasonable compensation, disbursements and expenses
of the Trustees agents, accountants, experts and counsel.
The Company shall indemnify each of the Trustee (in its capacity as Trustee) and any
predecessor Trustee and each of their respective officers, directors,
employees, attorneys-in-fact and agents
for, and hold it harmless against, any and all loss, liability, claim, damage, demand, expense (including but not limited to
reasonable compensation, disbursements and expenses of the Trustees agents and counsel), loss,
charges (including taxes (other than taxes based upon the income of the Trustee)) or liability
incurred by them without gross negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust and their rights or duties hereunder including the
reasonable costs and expenses of defending themselves against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder. The Trustee shall notify
the Company promptly of any claim asserted against the Trustee for
which it may seek indemnity; provided, however, that the failure to
so notify the Company shall not offset the Companys
indemnification obligations hereunder. The
Company shall defend the claim and the Trustee shall provide reasonable cooperation at the
Companys expense in the defense. The Trustee may have separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made
without its written consent which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability to the extent incurred by the
Trustee as determined by a court of
41
competent
jurisdiction to have been caused by its own gross negligence, bad faith or willful misconduct.
To secure the Companys payment obligations in this Section 6.07, the Trustee shall have a
lien prior to the Securities on all assets held or collected by the Trustee, in its capacity as
Trustee, except assets held in trust to pay principal and premium, if any, of or interest on
particular Securities.
In
addition to and without prejudice to its other rights hereunder, when the Trustee incurs expenses or renders services after an Event of Default specified in
Section 5.01(5) or (6) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
The Companys obligations under this Section 6.07 and any lien arising hereunder shall survive
the resignation or removal of the Trustee, the discharge of the Companys obligations pursuant to
Article IV of this Indenture and any rejection or termination of this Indenture under any
Bankruptcy Law.
Section 6.08
Replacement of Trustee
.
The Trustee may resign at any time with respect to the Securities of one or more series by so
notifying the Company in writing. The Holder or Holders of a majority in principal amount of the
outstanding Securities of a series may remove the Trustee with respect to Securities of such series
by so notifying the Company and the Trustee in writing and may appoint a successor trustee with
respect to Securities of such series with the Companys consent. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver, custodian, or other public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee, with
respect to the Securities of one or more series, for any reason, the Company shall promptly appoint
a successor Trustee, with respect to Securities of that or those series. Within one year after the
successor Trustee with respect to a series of Securities takes office, the Holder or Holders of a
majority in principal amount of the Securities of such series may appoint a successor Trustee with
respect to such series to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that and provided that all sums owing to the Trustee
provided for in Section 6.07 have been paid, the retiring Trustee shall transfer all
42
property held by it as Trustee with respect to such series of Securities to the successor Trustee,
subject to the lien provided in Section 6.07, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights, powers and duties of
the Trustee under this Indenture. A successor Trustee with respect to one or more series of
Securities shall mail notice of its succession to each Holder of Securities of that or those
series.
If a successor Trustee with respect to a series of Securities does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holder or Holders of at least 10% in principal amount of the outstanding Securities of that series
may petition at the expense of the Company any court of competent jurisdiction for the appointment
of a successor Trustee with respect to such series.
If the Trustee fails to comply with Section 6.10, any Holder of Securities of a series may
petition any court of competent jurisdiction for the removal of the Trustee with respect to such
series and the appointment of a successor Trustee with respect to such series.
Notwithstanding replacement of the Trustee pursuant to this Section 6.08, the Companys
obligations under Section 6.07 and the lien provided for therein shall continue for the benefit of the retiring Trustee.
Section 6.09
Successor Trustee by Merger, Etc.
If
the Trustee consolidates with, merges or converts with or into, or transfers all or substantially
all of its corporate trust business to, another Person, the resulting, surviving or transferee
Person without any further act shall, if such resulting, surviving or
transferee Person is otherwise eligible hereunder, be the successor Trustee.
Section 6.10
Eligibility; Disqualification
.
The Trustee shall at all times satisfy the requirements of Trust Indenture Act Section
310(a)(1) and Trust Indenture Act Section 310(a)(5). The Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with Trust Indenture Act Section 310(b).
Section 6.11
Preferential Collection of Claims against Company
.
The Trustee shall comply with Trust Indenture Act Section 311(a), excluding any creditor
relationship listed in Trust Indenture Act Section 311(b). A Trustee who has resigned or been
removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated.
ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01
Company to Furnish Trustee Names and Addresses of Holders
.
The Company will furnish or cause to be furnished to the Trustee:
43
(1) semi-annually, not more than 15 days after each Regular Record Date, a list for each
series of Securities, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of such series as of the Regular Record Date, as the case
may be, and
(2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
excluding
from any such list names and addresses received by the Trustee in its capacity as
Security Registrar.
Section 7.02
Preservation of Information; Communications to Holders
.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01
upon receipt of a new list so furnished.
The rights of the Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
Every Holder of 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 any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 7.03
Reports by Trustee
.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
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 any Securities are listed, with the Commission and with
the Company. The Company will notify the Trustee when any Securities are listed on any stock
exchange or delisted therefrom.
Section 7.04
Reports by Company
.
The Company shall file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant to such Act;
44
provided
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed
with the Trustee within 15 days after the same is so required to be filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes
only and the Trustees receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Companys
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers Certificates). All information, documents and reports described in this Section 7.04 and filed with
the Commission pursuant to its Electronic Data Gathering, Analysis, and Retrieval system or any successor system shall be
deemed to be filed with the Trustee as of the time they are filed via such system.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01
When Company May Merge, Etc.
The Company may not, in a single transaction or through a series of related transactions,
consolidate with or merge with or into any other Person, or, directly or indirectly, sell or convey
all or substantially all of its properties and assets to another Person or group of affiliated Persons, unless:
(1) the Company shall be the continuing Person, or the Person (if other than the Company)
formed by such consolidation or into which the Company is merged or to which all or substantially
all of the properties and assets of the Company are sold or conveyed (the Company or such other Person
being hereinafter referred to as the Surviving Person), shall be organized and validly existing
under the laws of the United States, 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, all the obligations of the Company under the
Securities and this Indenture;
(2) immediately after giving effect to such transaction and the assumption of the obligations
as set forth in clause (1), above, no 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, assignment, or transfer and such supplemental indenture comply with
this Article VIII and that all conditions precedent herein provided relating to such transaction
have been satisfied.
Section 8.02
Successor Substituted
.
45
Upon any consolidation or merger, or any transfer of assets in accordance with Section 8.01,
the Surviving Person formed by such consolidation or into which the Company is merged or to which
such transfer 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 Surviving Person had
been named as the Company herein. When a Surviving Person duly assumes all of the obligations of
the Company pursuant hereto and pursuant to the Securities, the predecessor shall be relieved of
the performance and observance of all obligations and covenants of this Indenture and the
Securities, including but not limited to the obligation to make payment of the principal of and
interest, if any, on all the Securities then outstanding, and the Company may thereupon or any time
thereafter be liquidated and dissolved.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01
Supplemental Indentures Without Consent of Holders
.
Without the consent of any Holders, the Company, when authorized by an Establishment Action,
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:
(1) to evidence the succession of another Person to the Company pursuant to Article VIII and
the assumption by any such successor of the covenants of the Company herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of the Holders of all or any series
of Securities (and if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the Company;
(3) to add any additional Events of Default;
(4) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form;
(5) to add to, change or eliminate any of the provisions of this Indenture in respect of one
or more series of Securities,
provided
that any such addition, change or elimination (A)
shall neither (i) apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of
the Holder of any such Security with respect to such provision or (B) shall become effective only
when there is no such Security Outstanding;
(6) to secure the Securities pursuant to the requirements of Article X or otherwise;
46
(7) to establish the form or terms of Securities of any series as permitted by Sections 2.01
and 3.01;
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Securities of one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11;
(9) subject to Section 9.07, to add to, change or eliminate any of the provisions of Article
XIV or change the definition of Senior Indebtedness in respect on one or more series of Securities,
including Outstanding Securities; or
(10)
to cure any ambiguity, or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; or
(11)
to make any other provisions with
respect to matters or questions arising under this Indenture,
provided
that such action
pursuant to this clause (11) shall not adversely affect the interests of the Holders of Securities
of any series.
Section 9.02
Supplemental Indentures with Consent of Holders
.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized by an Establishment
Action, 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 Securities of such
series under this Indenture;
provided
,
however
, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest or the
time of payment of interest thereon or any premium payable upon the redemption thereof, or reduce
the amount of the principal of an Original Issue Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change the
coin or currency in which, any Security or any premium or 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 adversary affect any rights of the Holders of Securities to
require the Company to repay or repurchase the Securities, or modify the provisions
of this Indenture with respect to the subordination of the Securities in a manner adverse to the
Holders, or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this Indenture, or
47
(3) modify any of the provisions of this Section or Section 5.13, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security affected thereby,
provided
,
however
, that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to the Trustee and concomitant changes in
this Section, or the deletion of this proviso, in accordance with the requirements of Sections 6.11
and 9.01(8), or
(4) change any obligation of the Company to maintain an office or agency, or
(5) change any obligation of the Company to pay additional amounts, or
(6) adversely affect any right of repayment or repurchase at the option of the Holder, or
(7) reduce or postpone any sinking fund or similar provision.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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 9.03
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 provided with, and (subject to Section 6.01) 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 9.04
Effect of Supplemental Indentures
.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 9.05
Conformity with Trust Indenture Act
.
48
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
Section 9.06
Reference in Securities to Supplemental Indentures
.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities
of such series.
Section 9.07
Subordination Unimpaired
.
No provision in any supplemental indenture that adversely affects the
rights of holders of
Senior Indebtedness under this Indenture shall be effective against
holders of Senior Indebtedness unless consented to by such holders.
ARTICLE X
COVENANTS
Section 10.01
Payment of Securities
.
The Company covenants and agrees for the benefit of each series of Securities that it will pay
the principal of and interest on the Securities of that series on the dates and in the manner
provided in the Securities of that series and this Indenture. An installment of principal, premium,
if any, or interest on the Securities shall be considered paid on the date it is due if the Trustee
or Paying Agent (other than the Company or an Affiliate of the Company) holds for the benefit of
the Holders, on that date, immediately available funds deposited and designated for and sufficient
to pay the installment. The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Securities compounded semi-annually, to the
extent lawful.
Section 10.02
Maintenance of Office or Agency
.
The Company shall maintain in the Place of Payment for any series of Securities, an office or
agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served and, in the case of any series of Securities that is convertible or
exchangeable for any other securities pursuant to Section 3.01(16), where Securities can be
surrendered for conversion or exchange. The Company shall 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
49
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations;
provided
,
however
, that no
such designation or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any series for such
purposes. The Company shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency. The Company hereby
initially designates the principal corporate trust office of the Trustee as such office of the
Company.
Section 10.03
Money for Securities Payments to Be Held in Trust
.
If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of or any premium or interest on
any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and 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 for any series of Securities, it
will, on or prior to each due date of the principal of or any premium or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the Securities of that series)
in the making of any payment in respect of the Securities of that series, upon the written request
of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same 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.
50
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 or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium 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 Security 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 City, 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 10.04
Compliance Certificate; Notice of Default
.
The Company shall deliver to the Trustee within 120 days after the end of its fiscal year an
Officers Certificate (one of the signatories of which shall be the Companys principal executive
officer, principal financial officer or principal accounting officer) complying with Section
314(a)(4) of the Trust Indenture Act and stating that a review of its activities during the
preceding fiscal year has been made under the supervision of the signing officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its obligations under
this Indenture (all without regard to periods of grace, which shall be deemed fulfilled unless and
until the expiration of such periods or notice requirements) and further stating, as to each such
officer signing such certificate, whether or not the signer knows of any failure by the Company to
comply with any conditions or covenants in this Indenture and, if such signer does know of such a
failure to comply, the certificate shall describe such failure with particularity. The Officers
Certificate shall also notify the Trustee should the relevant fiscal year end on any date other
than the current fiscal year end date.
So long as any of the Securities are outstanding, the Company will deliver to the Trustee,
forthwith upon becoming aware of any Event of Default or any event, act or condition that, after
notice or the passage of time or both, would be an Event of Default, an Officers Certificate
specifying such Event of Default or any event, act or condition that, after notice or the passage
of time or both, would be an Event of Default, and what action the Company is taking or proposes to
take with respect thereto.
Section 10.05
Corporate Existence
.
Subject to Article VIII, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence in accordance with its
organizational documents.
Section 10.06
Waiver of Certain Covenants
.
Except as otherwise specified as contemplated by Section 3.01 for Securities of such series,
the Company may, with respect to the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant pursuant to Section
3.01(18), 9.01(2) or 9.01(7) for the benefit of the Holders of such series, if the Holders of at
least a majority in principal amount of the Outstanding Securities of such series shall, by Act
51
of such Holders, either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent expressly waived and, until such waiver shall become
effective, the obligations of the Company and the duties of the trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.01
Applicability of Article
.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01
for Securities of any series) in accordance with this Article.
Section 11.02
Election to Redeem; Notice to Trustee
.
The election of the Company to redeem any Securities shall be evidenced by an Establishment
Action. In case of any redemption at the election of the Company of all or less than all the
Securities of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers Certificate evidencing compliance with such restriction.
Section 11.03
Selection by Trustee of Securities to Be Redeemed
.
If less than all the Securities of any series are to be redeemed (unless all of the Securities
of such series and of a specified tenor are to be redeemed), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series 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 the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series. If less than all of
the Securities of such series and of a specified tenor are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor not previously
called for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the converted portion of
such Security shall be deemed (so far as may be) to be the portion selected for redemption.
52
Securities which have been converted during a selection of 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 in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 11.04
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 Securities to be redeemed,
at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption of any Securities, the principal amounts) of
the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Securities are to be surrendered for payment of the
Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case, and
(7) applicable
CUSIP, ISIN or other similar numbers.
Notice of redemption of 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 and shall be irrevocable.
Section 11.05
Deposit of Redemption Price
.
53
On or before the Redemption Date specified in the notice of redemption given as provided in
Section 11.04, 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
10.03) 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 Securities which are to be
redeemed on that date, other than any Securities called for redemption on that date which have been
converted prior to the date of such deposit.
If any 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 Security shall
(subject to any right of the Holder of such Security or any Predecessor Security to receive
interest as provided in the last paragraph of Section 3.07) be paid to the Company upon Company
Request or, if then held by the Company, shall be discharged from such trust.
Section 11.06
Securities Payable on Redemption Date
.
Notice of redemption having been given as aforesaid, the 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 Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided
,
however
, that, unless otherwise specified as contemplated by Section 3.01, installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as such at the close
of business on the relevant Record Dates according to their terms and the provisions of Section
3.07.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
Section 11.07
Securities Redeemed in Part
.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
54
ARTICLE XII
SINKING FUNDS
Section 12.01
Applicability of Article
.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section 3.01 for Securities
of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a mandatory sinking fund payment, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an optional sinking fund payment. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02.
Each sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
Section 12.02
Satisfaction of Sinking Fund Payments with Securities
.
The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series;
provided
that such Securities have
not been previously so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03
Redemption of Securities for Sinking Fund
.
Not less than 60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities of that series pursuant to Section 12.02
and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 11.03 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 11.04. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
55
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01
Companys Option to Effect Defeasance or Covenant Defeasance
.
The Company may elect, at its option at any time, to have either Section 13.02 or Section
13.03 applied to the Outstanding Securities of any series designated pursuant to Section 3.01 as
being defeasible pursuant to this Article XIII (hereinafter called a Defeasible Series), upon
compliance with the conditions set forth below in this Article XIII;
provided
,
however
, that Section 13.02 shall not apply to any series of Securities that is convertible
into or exchangeable for any other securities pursuant to Section 3.01(16). Any such election shall
be evidenced by an Establishment Action or in another manner specified as contemplated by Section
3.01 for such Securities.
Section 13.02
Defeasance and Discharge
.
Upon the Companys exercise of the option provided in Section 13.01 to have this Section 13.02
applied to the Outstanding Securities of any Defeasible Series and subject to Section 13.01, the
Company shall be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series as provided in this Section on and after the date the
conditions set forth in Section 13.04 are satisfied (hereinafter called Defeasance). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under the Securities of such series and this Indenture insofar as the
Securities of such series are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following which shall survive
until otherwise terminated or discharged hereunder: (1) the rights of Holders of Securities of such
series to receive, solely from the trust fund described in Section 13.04 and as more fully set
forth in such Section, payments in respect of the principal of and any premium and interest on such
Securities of such series when payments are due, (2) the Companys obligations with respect to the
Securities of such series under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (4) this Article XIII. Subject to
compliance with this Article XIII, the Company may exercise its option provided in Section 13.01 to
have this Section 13.02 applied to the Outstanding Securities of any Defeasible Series
notwithstanding the prior exercise of its option provided in Section 13.01 to have Section 13.03
applied to the Outstanding Securities of such series.
Section 13.03
Covenant Defeasance
.
Upon the Companys exercise of the option provided in Section 13.01 to have this Section 13.03
applied to the Outstanding Securities of any Defeasible Series, (1) the Company shall be released
from its obligations under Section 8.01 and any covenants provided pursuant to Section 3.01(18) or
9.01(2) for the benefit of the Holders of such Securities, and (2) the occurrence of any event
specified in Sections 5.01(3) and 5.01(4) (with respect to Section 8.01 and any such covenants
provided pursuant to Section 3.01(18) or 9.01(2)) shall be deemed not to be or result in an Event
of Default, in each case with respect to the Outstanding Securities of
56
such series as provided in this Section on and after the date the conditions set forth in Section
13.04 are satisfied (hereinafter called Covenant Defeasance). For this purpose, such Covenant
Defeasance means that the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section (to the extent so
specified in the case of Section 5.01(4)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this Indenture and the
Securities of such series shall be unaffected thereby.
Section 13.04
Conditions to Defeasance or Covenant Defeasance
.
The following shall be the conditions to application of either Section 13.02 or Section 13.03
to the Outstanding Securities of any Defeasible Series:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee that satisfies the requirements contemplated by Section 6.09 and agrees to
comply with the provisions of this Article XIII applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of Outstanding Securities of such series, (A) money in an
amount, or (B) U.S. Government Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a combination thereof, in each case
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, and
which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on the Securities of such series on the respective
Stated Maturities, in accordance with the terms of this Indenture and the Securities of such
series. As used herein, U.S. Government Obligation means any security that is (i) a direct
obligation of the United States of America for the payment of which full faith and credit of the
United States of America is pledged or (ii) an obligation of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer
thereof.
(2) In the case of an election under Section 13.02, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date first set forth
hereinabove, there has been a change in the applicable Federal income tax law, in either case (A)
or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be effected with respect to the
Securities of such series and will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit, Defeasance and discharge were
not to occur.
57
(3) In the case of an election under Section 13.03, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such
series will not recognize gain or loss for Federal income tax purposes as a result of the deposit
and Covenant Defeasance to be effected with respect to the Securities of such series and will be
subject to Federal income tax on the same amount, in the same manner and at the same times as would
be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers Certificate to the effect
that the Securities of such series, if then listed on any securities exchange, will not be delisted
as a result of such deposit.
(5) No Event of Default or event that (after notice or lapse of time or both) would become an
Event of Default shall have occurred and be continuing at the time of such deposit or, with regard
to any Event of Default or any such event specified in Sections 5.01(5) and (6), at any time on or
prior to the 90th day after the date of such deposit (it being understood that this condition shall
not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting
interest within the meaning of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the Company is a party or by
which it is bound.
(8) The Company shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
(9) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act of
1940, as amended, unless such trust shall be qualified under such Act or exempt from regulation
thereunder.
Section 13.05
Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions
.
All money and U.S. Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.06, the
Trustee and any such other trustee are referred to collectively as the Trustee) pursuant to
Section 13.04 in respect of the Securities of any Defeasible Series shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities of such series and this
Indenture, to the payment, either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of Securities of such
series, of all sums due and to become due thereon in respect of
58
principal and any premium and interest, but money so held in trust need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.04 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
that by law is for the account of the Holders of Outstanding Securities.
Anything in this Article XIII to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 13.04 with respect to Securities of any Defeasible Series that,
in the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the amount thereof that
would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance
with respect to the Securities of such series.
Section 13.06
Reinstatement
.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article XIII with respect to the Securities of any series by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting such application,
then the Companys obligations under this Indenture and the Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to this Article XIII with respect
to Securities of such series until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 13.05 with respect to Securities of such series in
accordance with this Article XIII;
provided
,
however
, that if the Company makes any
payment of principal of or any premium or interest on any Security of such series following the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
Securities of such series to receive such payment from the money so held in trust.
ARTICLE XIV
SUBORDINATION OF SECURITIES
Section 14.01
Securities Subordinate to Senior Indebtedness
.
The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this
Article, the indebtedness represented by the Securities and the payment of the principal of (and
premium, if any) and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all Senior
Indebtedness.
59
Section 14.02
Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection therewith, relative
to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution
or other winding up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such event the holders of
Senior Indebtedness shall be entitled to receive payment in full of all amounts due or to become
due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in
money or moneys worth, before the Holders of the Securities are entitled to receive any payment on
account of principal of (or premium, if any) or interest on the Securities, and to that end the
holders of Senior Indebtedness shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash, property or
securities, which may be payable or deliverable in respect of the Securities in any such case,
proceeding, dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or
the Holder of any Security shall have received any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, before all Senior Indebtedness
is paid in full or payment thereof provided for, and if such fact shall, at or prior to the time of
such payment or distribution, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Company for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness.
For purposes of this Article only, the words cash, property or securities shall not be
deemed to include shares of stock 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
subordinated in right of payment to all Senior Indebtedness which may at the time be outstanding to
substantially the same extent as, or to a greater extent than, the Securities are so subordinated
as provided in this Article. The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following the conveyance or
transfer of its properties and assets substantially as an entirety to another Person upon the terms
and conditions set forth in Article VII shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of
the Company for the purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or which acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article VIII.
60
Section 14.03
Prior Payment to Senior Indebtedness Upon Acceleration of Securities
.
In the event that any Securities are declared due and payable before their Stated Maturity,
then and in such event the holders of Senior Indebtedness outstanding at the time such Securities
so become due and payable shall be entitled to receive payment in full of all amounts due or to
become due on or in respect of such Senior Indebtedness, or provision shall be made for such
payment in money or moneys worth, before the Holders of the Securities are entitled to receive any
payment by the Company on account of the principal of (or premium, if any) or interest on the
Securities or on account of the purchase or other acquisition of Securities;
provided
,
however
, that nothing in this Section shall prevent the satisfaction of any sinking fund
payment in accordance with Article XII by delivering and crediting pursuant to Section 12.02
Securities which have been acquired (upon redemption or otherwise) prior to such default.
In the event that, notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and
if such fact shall, at or prior to the time of such payment, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect to which Section
14.02 would be applicable.
Section 14.04
No Payment When Senior Indebtedness in Default
.
In the event and during the continuation of any default in the payment of principal of (or
premium, if any) or interest on any Senior Indebtedness beyond any applicable grace period with
respect thereto, or in the event that any event of default with respect to any Senior Indebtedness
shall have occurred and be continuing and shall have resulted in such Senior Indebtedness becoming
or being declared due and payable prior to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been cured or waived or shall have
ceased to exist and such acceleration shall have been rescinded or annulled, or in the event
any judicial proceeding shall be pending with respect to any such default in payment or event of
default, then no payment shall be made by the Company on account of principal of (or premium, if
any) or interest on the Securities or on account of the purchase or other acquisition of
Securities;
provided
,
however
, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article XII by delivering and crediting
pursuant to Section 12.02 Securities which have been acquired (upon redemption or otherwise) prior
to such default.
In the event that, notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and
if such fact shall, at or prior to the time of such payment, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
61
The provisions of this Section shall not apply to any payment with respect to which Section
14.02 would be applicable.
Section 14.05
Payment Permitted If No Default
.
Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities
shall prevent the Company, at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of creditors or other
marshalling of assets and liabilities of the Company referred to in Section 14.02 or under the
conditions described in Section 14.03 or 14.04, from making payments at any time of principal of
(and premium, if any) or interest on the Securities.
Section 14.06
Subrogation to Rights of Holders of Senior Indebtedness
.
Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities shall
be subrogated (equally and ratably with the holders of all indebtedness of the Company which by its
express terms is subordinated to indebtedness of the Company to substantially the same extent as
the Securities are subordinated and is entitled to like rights of subrogation) to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and premium, if any) and
interest on the Securities shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or securities to
which the Holders of the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to the holders of
Senior Indebtedness by Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the Securities, be deemed to
be a payment or distribution by the Company to or on account of the Senior Indebtedness.
Section 14.07
Provisions Solely to Define Relative Rights
.
The provisions of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities on the one hand and the holders of Senior
Indebtedness on the other hand. Nothing contained in this Article or elsewhere in this Indenture or
in the Securities is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Indebtedness, is intended to rank equally with all other general
obligations of the Company), to pay to the Holders of the Securities the principal of (and premium,
if any) and interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the Company of the Holders
of the Securities and creditors of the Company other than the holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the rights, if any, under
this Article of the holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
62
Section 14.08
Trustee to Effectuate Subordination
.
Each
Holder of a Security by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the subordination
provided in this Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
Section 14.09
No Waiver of Subordination Provisions
.
No right of any present or future holder of any Senior Indebtedness to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Indebtedness may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior Indebtedness, do
any one or more of the following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any Person
liable in any manner for the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 14.10
Notice to Trustee
.
The
Company shall give prompt written notice to a Responsible Officer of
the Trustee at the Corporate Trust Office of the Trustee of any fact known to the Company
which would prohibit the making of any payment or distribution to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article, including but not
limited to Sections 14.02, 14.03 and 14.04 hereof, or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the
making of any payment or distribution to or by the Trustee in respect of the Securities, unless and until a Responsible Officer of the
Trustee shall have received at the Corporate Trust Office of the
Trustee written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee therefor; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 6.01, shall be entitled in all respects to assume
that no such facts exist;
provided
,
however
, that if the Trustee shall not have
received the notice provided for in this Section at least three Business Days prior to the date
upon which by the terms hereof any cash, property or securities may
become payable or distributable for any purpose (including, without
limitation, the payment of the principal of (and premium, if any) or interest on any Security),
then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such cash, property or securities and to apply the same to the purpose for which
63
such cash, property or securities was received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
Subject to the provisions of Section 6.01, the Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee therefor) to establish that such notice has been given by a holder of
Senior Indebtedness (or a trustee therefor). In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee may defer any payment or distribution
to such Person pending judicial determination as to the right of such Person to receive such
payment or distribution.
Section 14.11
Reliance on Judicial Order or Certificate of Liquidating Agent
.
Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or
similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
Section 14.12
Trustee Not Fiduciary for Holders of Senior Indebtedness
.
With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations with respect to the holders of
Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall mistakenly pay
over or distribute to Holders of Securities or to the Company or to any other Person cash, property
or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise.
Section 14.13
Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustees
Rights
.
The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
64
Nothing in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Sections 5.06 and 6.07.
Section 14.14
Article Applicable to Paying Agents
.
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 shall in such case
(unless the context otherwise requires) 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 in addition to or in place of the Trustee;
provided
, however, that Sections
14.10, 14.12 and 14.13 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts
as Paying Agent.
Section 14.15
Certain Conversions Deemed Payment
.
For the purposes of this Article only, the payment, issuance or delivery of cash, property or
securities (other than junior securities) upon conversion of a Security shall be deemed to
constitute payment on account of the principal of such Security. For the purposes of this Section,
the term junior securities means (a) shares of any stock of any class of the Company and (b)
securities of the Company which are subordinated in right of payment to all Senior Indebtedness
which may be outstanding at the time of issuance or delivery of such securities to substantially
the same extent as, or to a greater extent than, the Securities are so subordinated as provided in
this Article.
Section 14.16
Trust Moneys Not Subordinated
.
Notwithstanding anything contained herein to the contrary, payments from moneys or the
proceeds of U.S. Government Obligations held in trust under Article XIII by the Trustee for the
payment of principal of, premium, if any, and interest on the Securities from the date of deposit
(if made in compliance with this Indenture) shall not be subordinated to the prior payment of any
Senior Indebtedness or subject to the restraints set forth in this Article, and none of the Holders
shall be obligated to pay over any such amount to the Company or any holder of Senior Indebtedness
of the Company or any other creditor of the Company.
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.
(Signature Page to Follow)
65
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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ALLEGHENY TECHNOLOGIES
INCORPORATED
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By:
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Name:
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Title:
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THE BANK OF NEW YORK MELLON,
as Trustee
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By:
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Name:
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Title:
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66
ALLEGHENY TECHNOLOGIES INCORPORATED
Certain Sections of this Indenture relating to
Sections 310 through 318(a), inclusive, of the
Trust Indenture Act of 1939:
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Trust Indenture
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Act Section
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Indenture Section
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§ 310
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(a)(1)
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6.10
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(a)(2)
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6.10
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(a)(5)
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6.10
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(b)
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6.08
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6.10
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(c)
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Not Applicable
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§ 311
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(a)
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6.11
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(b)
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6.11
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(c)
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Not Applicable
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§ 312
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(a)
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7.01
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7.02
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(b)
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7.02
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(c)
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7.02
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§ 313
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(a)
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6.06
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7.03
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(b)
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6.06
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7.03
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(c)
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6.06
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7.03
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(d)
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7.03
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§ 314
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(a)
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7.04
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(a)(4)
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1.01
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10.04
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(b)
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Not Applicable
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(c)(1)
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1.02
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(c)(2)
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1.02
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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1.02
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§ 315
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(a)
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6.01
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(b)
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6.05
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(c)
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6.01
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(d)
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6.01
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(e)
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5.14
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§ 316
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(a)
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1.01
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(a)(1)(A)
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5.02
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5.12
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Trust Indenture
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Act Section
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Indenture Section
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(a)(1)(B)
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5.13
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(a)(2)
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Not Applicable
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(b)
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5.08
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(c)
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1.04
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§ 317
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(a)(1)
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5.03
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(a)(2)
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5.04
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(b)
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10.03
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§ 318
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(a)
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1.07
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NOTE:
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This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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*
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The relevant provision will be included in Article X of this
Indenture or in a supplement thereto.
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