Exhibit 4.1
MAGNA ENTERTAINMENT CORP.
and
o
Trustee
SENIOR INDENTURE
Dated as of o, 200_
Providing for Issuance of Senior Securities in Series
----------------------------------------------------------
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
AGREEMENT PROVISIONS*
Trust Indenture
Act Section Agreement Section
ss.310(a)(1) ........................................ 6.09
(a)(2) ........................................ 6.09
(a)(3) ........................................ Not Applicable
(a)(4) ........................................ Not Applicable
(a)(5) ........................................ 6.09
(b) ........................................ 6.08
ss.311(a) ........................................ 6.14
(b) ........................................ 6.14
(c) ........................................ Not Applicable
ss.312(a) ........................................ 7.01
........................................ 7.02(a)
(b) ........................................ 7.02(b)
(c) ........................................ 7.02(c)
ss.313(a) ........................................ 7.03
(b) ........................................ 7.03
(c) ........................................ 7.03
(d) ........................................ 7.03
ss.314(a)(1) ........................................ 7.04
(a)(2) ........................................ 7.04
(a)(3) ........................................ 7.04
(a)(4) ........................................ 10.04
(b) ........................................ Not Applicable
(c)(1) ........................................ 1.02
(c)(2) ........................................ 1.02
(c)(3) ........................................ Not Applicable
(d) ........................................ Not Applicable
(e) ........................................ 1.02
ss.315(a) ........................................ 6.01(a)
........................................ 6.01(c)
(b) ........................................ 6.02
(c) ........................................ 6.01(b)
(d) ........................................ 6.01
(d)(1) ........................................ 6.01(a)
- ---------------------------
* This reconciliation and tie shall not, for any purpose, be deemed to be part
of the within agreement.
(d)(2) ........................................ 6.01(c)(2)
(d)(3) ........................................ 6.01(c)(3)
(e) ........................................ 5.14
ss.316(a) ........................................ 1.01
(a)(1)(A) ........................................ 5.02
........................................ 5.12
(a)(1)(B) ........................................ 5.13
(a)(2) ........................................ Not Applicable
(b) ........................................ 5.08
(c) ........................................ 1.04(d)
ss.317(a)(1) ........................................ 5.03
(a)(2) ........................................ 5.04
(b) ........................................ 10.03
ss.318(a) ........................................ 1.07
- ---------------------------
* This reconciliation and tie shall not, for any purpose, be deemed to be part
of the within agreement.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.....................................1
SECTION 1.01 Definitions.........................................................................1
SECTION 1.02 Compliance Certificates and Opinions................................................9
SECTION 1.03 Form of Documents Delivered to Trustee.............................................10
SECTION 1.04 Acts of Securityholders............................................................11
SECTION 1.05 Notices, etc., to Trustee and Company..............................................12
SECTION 1.06 Notices to Securityholders; Waiver.................................................12
SECTION 1.07 Conflict with Trust Indenture Act..................................................12
SECTION 1.08 Effect of Headings and Table of Contents...........................................13
SECTION 1.09 Successors and Assigns.............................................................13
SECTION 1.10 Separability Clause................................................................13
SECTION 1.11 Benefits of Indenture..............................................................13
SECTION 1.12 Governing Law......................................................................13
SECTION 1.13 Counterparts.......................................................................13
SECTION 1.14 Judgment Currency..................................................................13
ARTICLE II SECURITY FORMS............................................................................14
SECTION 2.01 Forms Generally....................................................................14
SECTION 2.02 Forms of Securities................................................................14
SECTION 2.03 Form of Trustee's Certificate of Authentication....................................14
SECTION 2.04 Securities Issuable in the Form of a Global Security...............................14
ARTICLE III THE SECURITIES...........................................................................16
SECTION 3.01 General Title; General Limitations; Issuable in Series; Terms of
Particular Series..................................................................16
SECTION 3.02 Denominations......................................................................19
SECTION 3.03 Execution, Authentication and Delivery and Dating..................................19
SECTION 3.04 Temporary Securities...............................................................20
SECTION 3.05 Registration, Transfer and Exchange................................................20
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities...................................22
SECTION 3.07 Payment of Interest; Interest Rights Preserved.....................................22
SECTION 3.08 Persons Deemed Owners..............................................................23
SECTION 3.09 Cancellation.......................................................................24
SECTION 3.10 Computation of Interest............................................................24
SECTION 3.11 Medium-term Securities.............................................................24
ARTICLE IV SATISFACTION AND DISCHARGE................................................................24
SECTION 4.01 Satisfaction and Discharge of Indenture............................................24
SECTION 4.02 Application of Trust Money.........................................................25
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SECTION 4.03 Defeasance Upon Deposit of Funds or Government Obligations.........................26
ARTICLE V REMEDIES...................................................................................27
SECTION 5.01 Events of Default..................................................................27
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment.................................28
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee....................30
SECTION 5.04 Trustee May File Proofs of Claim...................................................30
SECTION 5.05 Trustee May Enforce Claims Without Possession of Securities........................31
SECTION 5.06 Application of Money Collected.....................................................31
SECTION 5.07 Limitation on Suits................................................................32
SECTION 5.08 Unconditional Right of Securityholders to Receive Principal, Premium and
Interest...........................................................................32
SECTION 5.09 Restoration of Rights and Remedies.................................................32
SECTION 5.10 Rights and Remedies Cumulative.....................................................33
SECTION 5.11 Delay or Omission Not Waiver.......................................................33
SECTION 5.12 Control by Securityholders.........................................................33
SECTION 5.13 Waiver of Past Defaults............................................................33
SECTION 5.14 Undertaking for Costs..............................................................34
SECTION 5.15 Waiver of Stay or Extension Laws...................................................34
ARTICLE VI THE TRUSTEE...............................................................................34
SECTION 6.01 Certain Duties and Responsibilities................................................34
SECTION 6.02 Notice of Defaults.................................................................35
SECTION 6.03 Certain Rights of Trustee..........................................................36
SECTION 6.04 Not Responsible for Recitals or Issuance of Securities.............................36
SECTION 6.05 May Hold Securities................................................................37
SECTION 6.06 Money Held in Trust................................................................37
SECTION 6.07 Compensation and Reimbursement.....................................................37
SECTION 6.08 Disqualification; Conflicting Interests............................................37
SECTION 6.09 Corporate Trustee Required; Eligibility............................................38
SECTION 6.10 Resignation and Removal; Appointment of Successor..................................38
SECTION 6.11 Acceptance of Appointment by Successor.............................................40
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business........................40
SECTION 6.13 Appointment of Authenticating Agent................................................41
SECTION 6.14 Preferential Collection of Claims Against Company..................................42
ARTICLE VII SECURITYHOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY................................42
SECTION 7.01 Company To Furnish Trustee Names and Addresses of Securityholders..................42
SECTION 7.02 Preservation of Information; Communications to Securityholders.....................42
SECTION 7.03 Reports by Trustee.................................................................44
ii
SECTION 7.04 Reports by Company.................................................................44
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER...........................................45
SECTION 8.01 Company May Consolidate, etc., only on Certain Terms...............................45
SECTION 8.02 Successor Corporation Substituted..................................................45
ARTICLE IX SUPPLEMENTAL INDENTURES...................................................................45
SECTION 9.01 Supplemental Indentures Without Consent of Securityholders.........................45
SECTION 9.02 Supplemental Indentures with Consent of Securityholders............................47
SECTION 9.03 Execution of Supplemental Indentures...............................................47
SECTION 9.04 Effect of Supplemental Indentures..................................................48
SECTION 9.05 Conformity with Trust Indenture Act................................................48
SECTION 9.06 Reference in Securities to Supplemental Indentures.................................48
ARTICLE X COVENANTS..................................................................................48
SECTION 10.01 Payment of Principal, Premium and Interest.........................................48
SECTION 10.02 Maintenance of Office or Agency....................................................48
SECTION 10.03 Money for Security Payments to be Held in Trust....................................48
SECTION 10.04 Statement as to Compliance.........................................................50
SECTION 10.05 Corporate Existence................................................................50
SECTION 10.06 Waiver of Certain Covenants........................................................50
SECTION 10.07 Offer to Repurchase Upon Change in Control.........................................51
ARTICLE XI REDEMPTION OF SECURITIES..................................................................54
SECTION 11.01 Applicability of Article...........................................................54
SECTION 11.02 Election to Redeem; Notice to Trustee..............................................54
SECTION 11.03 Selection by Trustee of Securities to Be Redeemed..................................55
SECTION 11.04 Notice of Redemption...............................................................55
SECTION 11.05 Deposit of Redemption Price........................................................56
SECTION 11.06 Securities Payable on Redemption Date..............................................56
SECTION 11.07 Securities Redeemed in Part........................................................56
SECTION 11.08 Optional Redemption................................................................57
SECTION 11.09 Mandatory Redemption; No Sinking Fund..............................................57
ARTICLE XII CONVERSION...............................................................................57
SECTION 12.01 Applicability of Article...........................................................57
SECTION 12.02 Conversion Privilege...............................................................57
SECTION 12.03 Conversion Procedure...............................................................58
SECTION 12.04 Fractional Shares..................................................................59
SECTION 12.05 Taxes on Conversion................................................................59
SECTION 12.06 Company to Provide Stock...........................................................60
SECTION 12.07 Adjustment of Conversion Price.....................................................60
SECTION 12.08 No Adjustment......................................................................64
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SECTION 12.09 Other Adjustments..................................................................64
SECTION 12.10 Adjustments for Tax Purposes.......................................................65
SECTION 12.11 Notice of Adjustment...............................................................65
SECTION 12.12 Notice of Certain Transactions.....................................................65
SECTION 12.13 Effect of Reclassifications, Consolidations, Mergers or Sales on
Conversion Privilege...............................................................65
SECTION 12.14 Trustee's Disclaimer...............................................................66
SECTION 12.15 Voluntary Reduction................................................................67
iv
THIS INDENTURE between MAGNA ENTERTAINMENT CORP., a Delaware
corporation (hereinafter called the "Company") having its principal office at
337 Magna Drive, Aurora, Ontario, Canada L4G 7Kl, and o, a o corporation, as
trustee (hereinafter called the "Trustee"), is made and entered into as of
this o day of o, 200_.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its senior debentures, senior notes,
senior bonds or other evidences of senior indebtedness, to be issued in one or
more fully registered series.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and
conditions upon which the Securities (as defined below) are to be
authenticated, issued and delivered, and in consideration of the premises and
the purchase of Securities by the Holders (as defined below) thereof, it is
mutually covenanted and agreed as follows, for the equal and proportionate
benefit of all Holders of the Securities or of a series thereof, as the case
may be:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
SECTION 1.01 Definitions. For all purposes of this Indenture and of
any indenture supplemental hereto, 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 but not defined herein that are defined in
the Trust Indenture Act or by Commission rule under the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned
to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America at
the date of such computation;
(4) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Indenture as originally executed.
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
(5) "including" and words of similar import shall be deemed to be
followed by "without limitation".
"Act", when used with respect to any Securityholder, 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.
"Agent" means any Security Registrar, Paying Agent or Conversion
Agent.
"Authenticating Agent" means any Person authorized by the Trustee to
authenticate Securities under Section 6.13.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board or any committee of
officers of the Company acting pursuant to authority granted by the board of
directors of the Company or any committee of such board of directors.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means any day that is neither a Saturday, Sunday or
other day on which banking institutions and trust companies in the City of New
York or in Toronto, Ontario or the pertinent Place or Places of Payment are
authorized or required by law or executive order to be closed. If a payment
date is not a Business Day at the pertinent Place of Payment, payment may be
made at that place on the next succeeding day that is not a Business Day and
no interest shall accrue on such payment for the intervening period.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock (but
excluding any debt security that is convertible into, or exchangeable for,
Capital Stock), including, with respect to partnerships, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership.
"Change in Control" has the meaning specified in Section 10.07(a).
"Change in Control Offer" has the meaning specified in Section
10.07(a).
2
"Change in Control Payment" has the meaning specified in Section
10.07(a).
"Change in Control Payment Date" has the meaning specified in
Section 10.07(a).
"Change in Control Payment Notice" has the meaning specified in
Section 10.07(b).
"Class A Subordinate Voting Stock" means the Class A Subordinate
Voting Stock, par value $0.01, of the Company.
"Class B Stock" means the Class B Stock, par value $0.01, of the
Company.
"Closing Sale Price" for any date means the last reported sale price
or, in case no such reported sale takes place on such date, the average of the
reported closing bid and asked prices in either case on NASDAQ or, if the
Class A Subordinate Voting Stock is not then listed or admitted to trading on
NASDAQ, on the principal national securities exchange on which the Class A
Subordinate Voting Stock is then listed or admitted to trading or, if not
listed or admitted to trading on NASDAQ or any national securities exchange,
the last reported sale price of the Class A Subordinate Voting Stock as quoted
on NASDAQ or, in case no reported sale takes place, the average of the closing
bid and asked prices as quoted on NASDAQ or any comparable system or, if the
Class A Subordinate Voting Stock is not quoted on NASDAQ or any comparable
system, the closing sale price or, in case no reported sale takes place, the
average of the closing bid and asked prices, as furnished by any two members
of the National Association of Securities Dealers, Inc. selected from time to
time by the Company for that purpose.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
as amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall instead mean such successor corporation.
"Company Request", "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its Chairman of the Board, President or a Vice-President, and by
its Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Conversion Agent" means any Person authorized by the Company to
receive, on behalf of the Company, any Convertible Securities presented for
conversion.
"Conversion Date" has the meaning specified in Section 12.03.
"Conversion Price" has the meaning specified in Section 12.02.
3
"Convertible Security" has the meaning specified in Section 12.01.
"Corporate Trust Office" means the principal office of the Trustee
in the City of New York, at which at any particular time its corporate trust
business shall be principally administered, which office at the date hereof is
located at o, Attention: [Corporate Trust Department], except that with
respect to the presentation of Securities for payment or for registration of
transfer and exchange, such term shall mean the office or the agency of the
Trustee in said city at which at any particular time its corporate agency
business shall be conducted, which office at the date hereof is located at o.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, unless otherwise specified by the Company
pursuant to either Section 2.04 or 3.01, with respect to Securities of any
series issuable or issued as a Global Security, The Depository Trust Company,
New York, New York, or any successor thereto registered as a clearing agency
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation.
"Determination Date" has the meaning specified in Section 12.07(e).
"Discharged" has the meaning specified in Section 4.03.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expiration Date" has the meaning specified in Section 12.07(f).
"Expiration Time" has the meaning specified in Section 12.07(f).
"Exchange Rate Contract" means, with respect to any Person, any
currency swap agreements, forward exchange rate agreements, foreign currency
futures or options, exchange rate collar agreements, exchange rate insurance
and other agreements or arrangements, or any combination thereof, the
principal purpose of which is to provide protection against fluctuations in
currency exchange rates. An Exchange Rate Contract may also include an
Interest Rate Agreement.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, including those principles
set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as have been approved by a significant
segment of the accounting profession, which are in effect from time to time.
"Global Security" means, with respect to any series of Securities
issued hereunder, a Security that is executed by the Company and authenticated
and delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions, all in accordance with this Indenture and an indenture
supplemental hereto, if any, or Board Resolution and pursuant to a
4
Company Request, which shall be registered in the name of the Depositary or
its nominee and which shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all the Outstanding Securities of
such series or any portion thereof, in either case having the same terms,
including, without limitation, the same original issue date, date or dates on
which principal is due, and interest rate or method of determining interest.
"Holder", when used with respect to any Security, means a
Securityholder.
"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, the Securities or similar instruments or letters of
credit, bank guarantees or bankers' acceptances, or reimbursement agreements
in respect thereof, or representing the balance deferred and unpaid of the
purchase price of any property, including pursuant to capital leases and
sale-and-leaseback transactions, or representing obligations and liabilities,
contingent or otherwise, in respect of leases required, in conformity with
GAAP, to be accounted for as capitalized lease obligations on such Person's
balance sheet, or representing any hedging obligations under an Exchange Rate
Contract or an Interest Rate Agreement, except any such balance that
constitutes an accrued expense or trade payable, if and to the extent any of
the foregoing indebtedness, other than obligations under an Exchange Rate
Contract or an Interest Rate Agreement, would appear as a liability upon a
balance sheet of such Person prepared in accordance with GAAP, and also
includes, to the extent not otherwise included, the guarantee by such Person
of items that would be included within this definition as Indebtedness of
another Person. The amount of any Indebtedness outstanding as of any date
shall be the accreted value thereof, in the case of any Indebtedness issued
with original issue discount. Indebtedness shall not include liabilities for
taxes of any kind.
"Indenture" or "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 3.01.
"Insolvency or Bankruptcy Proceeding" means any insolvency or
bankruptcy proceedings, or any receivership, liquidation, reorganization or
other similar proceedings relative to the Company or to the property of the
Company or the assets of the Company, or in the event of any proceedings for
voluntary liquidation, dissolution or other winding-up of the Company whether
or not involving insolvency or bankruptcy, or any marshalling of the assets
and liabilities of the Company.
"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 series of
Securities, means the date specified in such Securities as the fixed date on
which any installment of interest on those Securities is due and payable.
"Interest Rate Agreement" means, with respect to any Person, any
interest rate swap agreement, interest rate cap agreement, interest rate
collar agreement or other similar
5
agreement the principal purpose of which is to protect the party indicated
therein against fluctuations in interest rates.
"Judgment Currency" has the meaning specified in Section 1.14.
"Maturity", when used with respect to any series of Securities,
means the date on which the principal of such Securities becomes due and
payable as therein or herein provided, whether on a Repayment Date, at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"New York Banking Day" has the meaning specified in Section 1.14.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary, the Executive Vice-President or any
Vice-President of such Person.
"Officers' Certificate" means a certificate signed in the name of
the Company by its Chairman of the Board, President or a Vice-President, and
by its Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary or an Assistant Secretary, and delivered to the Trustee. Wherever
this Indenture requires that an Officers' Certificate be signed also by an
engineer or an accountant or other expert, such engineer, accountant or other
expert (except as otherwise expressly provided in this Indenture) may be in
the employ of the Company, which engineer, accountant or expert shall be
acceptable to the Trustee, whose acceptance shall not be unreasonably
withheld.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of
or of counsel to the Company who shall be acceptable to the Trustee, whose
acceptance shall not be unreasonably withheld. An Opinion of Counsel may be
limited to the laws of the State of New York and the General Corporation Law
of the State of Delaware.
"Original Issue Discount Security" means (i) any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof and (ii)
any other Security deemed an Original Issue Discount Security for United
States Federal income tax purposes.
"Outstanding", when used with respect to Securities of any series,
means, as of the date of determination, all Securities of such series
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such
6
redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) such Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture,
or which shall have been paid pursuant to the terms of Section 3.06.
In determining whether the Holders of the requisite principal amount
of such Securities Outstanding have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (i) the principal amount of
any 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 the taking of such action upon a declaration on such date of
acceleration of the Maturity thereof and (ii) 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. 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 assigned to the corporate trust
department of the Trustee knows to be owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor 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 pledgee's right to act as owner 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 such other
obligor.
"NASDAQ" means the Nasdaq National Market.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, with respect to any series of Securities
issued hereunder, the city or political subdivision so designated with respect
to such series in accordance with the provisions of Section 3.01.
"Predecessor Securities" 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
lieu of a lost, destroyed or stolen Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Security.
"Protected Purchaser" has the meaning specified in Section 8-303 of
the New York Uniform Commercial Code.
"Purchased Shares" has the meaning specified in Section 12.07(f).
7
"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 specified in the Security at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Security on
any Interest Payment Date means the date specified in such Security as the
Regular Record Date.
"Repayment Date", when used with respect to any Security to be
repaid, means the date fixed for such repayment pursuant to such Security.
"Repayment Price", when used with respect to any Security to be
repaid, means the price at which it is to be repaid pursuant to such
Security."
"Required Currency" has the meaning specified in Section 1.14.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice-president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any senior trust officer or trust officer,
the controller and any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Rights Plan" has the meaning specified in Section 12.07(c).
"Security" or "Securities" means any senior note or senior notes,
senior bond or senior bonds, senior debenture or senior debentures, or any
other evidences of senior indebtedness, as the case may be, of any series
authenticated and delivered from time to time under this Indenture.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" means the Person who keeps the Security
Register specified in Section 3.05.
"Securityholder" means a Person in whose name a Security is
registered in the Security Register.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.07.
8
"Stated Maturity" when used with respect to any series of Securities
or any installment of principal thereof means the date specified in such
Securities as the fixed date on which the principal of such Securities or such
installment of principal is due and payable.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of such
Person or a combination thereof.
"Trading Day" means:
(1) if the Class A Subordinate Voting Stock is quoted on NASDAQ and
the Toronto Stock Exchange, a day on which trades may be made on NASDAQ and
the Toronto Stock Exchange; or
(2) if the Class A Subordinate Voting Stock is not so listed,
admitted for trading or quoted, any day other than a Saturday or Sunday or a
day on which banking institutions in the State of New York and the Province of
Ontario are authorized or obligated by law, executive order or otherwise to
close.
"Triggering Distribution" has the meaning specified in Section
12.07(e).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended by the Trust Indenture Reform Act of 1990, as in force at the
date as of which this instrument was executed except as provided in Section
9.05.
"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 and include each Person who is then a Trustee hereunder,
but shall not include the predecessor Trustee. If at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"Unissued Shares" has the meaning specified in Section 10.07(a).
"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", including an
executive, senior or assistant vice-president.
"Voting Stock" means any class of Capital Stock or other interests
then outstanding and normally entitled (without regard to the occurrence of
any contingency) to vote in the election of the board of directors, managers
or trustees.
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, except in connection with the initial
issuance of the Securities of any series, the Company shall, at the request of
the Trustee, furnish to the Trustee an Officers' Certificate stating that all
9
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been satisfied and an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been
satisfied, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to satisfaction of a
condition or compliance with a covenant provided for in this Indenture (except
for the written statement required by Section 10.04) shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition, as the case may be, 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 condition has been
satisfied or such covenant complied with, as the case may be; and
(4) a statement as to whether, in the opinion of each such
individual, such condition has been satisfied or covenant has been
complied with, as the case may be.
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 the other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows 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.
10
SECTION 1.04 Acts of Securityholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Securityholders or Securityholders of
any series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by an
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. If any Securities are denominated in coin or
currency other than that of the United States, then for the purposes of
determining whether the Holders of the requisite principal amount of
Securities have taken any action as herein described, the principal amount of
such Securities shall be deemed to be that amount of United States dollars
that could be obtained for such principal amount on the basis of the spot rate
of exchange into United States dollars for the currency in which such
Securities are denominated (as evidenced to the Trustee by an Officers'
Certificate) as of the date the taking of such action by the Holders of such
requisite principal amount is evidenced to the Trustee as provided in the
immediately preceding sentence. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Securityholders 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.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any 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 an officer of a corporation or a
member of a partnership, on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Company may, at its option, by Board Resolution, fix in advance a record date
for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Holders of record at the close of business on the record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Securities Outstanding have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Securities Outstanding shall be
computed as of the record date; provided that no such authorization, consent,
waiver or other action by the Holders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
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(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind the Holder of
every Security issued upon the transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done or suffered to be done by the
Trustee or the Company in reliance thereon whether or not notation thereof is
made upon such Security.
SECTION 1.05 Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of
Securityholders 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 Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder (except as otherwise expressly
provided herein, including in Section 5.01(4), and, in the case of a
request for repayment, as specified in the Security carrying the right to
repayment) 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 Notices to Securityholders; Waiver. Where this
Indenture or any Security provides for notice to Securityholders of any event,
such notice shall be sufficiently given (unless otherwise herein or in such
Security expressly provided) if in writing and mailed, first-class postage
prepaid, to each Securityholder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Securityholders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Securityholder shall affect the sufficiency of such notice with respect to
other Securityholders. Where this Indenture or any Security 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
Securityholders 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 as a
result of a strike, work stoppage or otherwise, it shall be impractical to
mail notice of any event to any Securityholder when such notice is required to
be given pursuant to any provision of this Indenture, then any method of
notification as shall be satisfactory to the Trustee and the Company shall be
deemed to be a sufficient giving of such notice.
SECTION 1.07 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision which is required
or deemed to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required or deemed provision shall control.
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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
any Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, any Authenticating Agent,
Paying Agent or Conversion Agent, the Security Registrar and the Holders of
Securities (or such of them as may be affected thereby), any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12 Governing Law. THIS INDENTURE AND THE SECURITIES OF ANY
SERIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS
OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS
OF LAW.
SECTION 1.13 Counterparts. 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.
SECTION 1.14 Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of, or premium or interest, if any, on the
Securities of any series (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in the City of New York the Required Currency with the
Judgment Currency on the New York Banking Day (as defined below) preceding
that on which a final unappealable judgment is given and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not
be discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with clause (a) above), in any
currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the
full amount of the Required Currency expressed to be payable in respect of
such payments, (ii) shall be enforceable as an alternative or additional cause
of action for the purpose of recovering in the Required Currency the amount,
if any, by which such actual receipt shall fall short of the full amount of
the Required Currency so expressed to be payable and (iii) shall not be
affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing, "New York Banking Day" means any day
except a Saturday, Sunday or a legal holiday in the City of New York or a day
on which banking institutions in the City of New York are authorized or
required by law or executive order to close.
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ARTICLE II
SECURITY FORMS
SECTION 2.01 Forms Generally. The Securities shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon,
as may be required to comply with applicable laws or regulations or 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. Any portion of the text of any Security may be
set forth on the reverse thereof, with an appropriate reference thereto on the
face of the Security.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or
may be produced in any other manner, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities,
subject, with respect to the Securities of any series, to the rules of any
securities exchange on which such Securities are listed.
SECTION 2.02 Forms of Securities. Each Security shall be in one of
the forms approved from time to time by or pursuant to a Board Resolution, or
established in one or more indentures supplemental hereto. Prior to the
delivery of a Security to the Trustee for authentication in any form approved
by or pursuant to a Board Resolution, the Company shall deliver to the Trustee
the Board Resolution by or pursuant to which such form of Security has been
approved, or, if a Board Resolution authorizes a specific officer or officers
to approve a form of Security, a certificate of such officer or officers
approving the form of Security attached thereto. Any form of Security approved
by or pursuant to a Board Resolution must be acceptable as to form to the
Trustee, such acceptance to be evidenced by the Trustee's authentication of
Securities in that form or a certificate signed by a Responsible Officer of
the Trustee and delivered to the Company.
SECTION 2.03 Form of Trustee's Certificate of Authentication. The
form of Trustee's Certificate of Authentication for any Security issued
pursuant to this Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ],
as Trustee
By: ______________________________
Authorized Officer
SECTION 2.04 Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Sections 2.02 and 3.01 that the
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the
14
Company shall execute and the Trustee or its agent shall, in accordance with
Section 3.03 and the Company Request delivered to the Trustee or its agent
thereunder, authenticate and deliver, such Global Security or Securities,
which (i) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, the Outstanding Securities of such series to be
represented by such Global Security or Securities, or such portion thereof as
the Company shall specify in the Company Request, (ii) shall be registered in
the name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee or its agent to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for the individual Securities represented
hereby, this Global Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary."
(b) Notwithstanding any other provisions of this Section 2.04 or of
Section 3.05, and subject to the provisions of paragraph (c) below, unless the
terms of a Global Security expressly permit such Global Security to be
exchanged in whole or in part for individual Securities, a Global Security may
be transferred, in whole but not in part and in the manner provided in Section
3.05, only to a nominee of the Depositary for such Global Security, or to the
Depositary, or a successor Depositary for such Global Security selected or
approved by the Company, or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time the Depositary for the Securities of a
series ceases to be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to such Global
Security. If a successor Depositary for such Global Security is not appointed
by the Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company will execute, and the Trustee
or its agent, upon receipt of a Company Request for the authentication and
delivery of individual Securities of such series in exchange for such Global
Security, will authenticate and deliver in exchange for such Global Security,
individual Securities of such series of like tenor and terms in an aggregate
principal amount equal to the principal amount of the Global Security.
(ii) The Company may at any time and in its sole discretion
determine that the Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Request for the
authentication and delivery of individual Securities of such series in
exchange in whole or in part for such Global Security, will authenticate and
deliver in exchange for such Global Security or Securities, individual
Securities of such series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such Global
Security or Securities representing such series or portion thereof.
(iii) If specified by the Company pursuant to Sections 2.02 and 3.01
with respect to Securities issued or issuable in the form of a Global
Security, the Depositary for such
15
Global Security may surrender such Global Security in exchange in whole or in
part for individual Securities of such series of like tenor and terms in
definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the Trustee or its agent
shall authenticate and deliver, without service charge, (1) to each Person
specified by such Depositary a new Security or Securities of the same series
of like tenor and terms and of any authorized denomination as requested by
such Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and (2) to such
Depositary a new Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of
Securities delivered to the Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Securities in definitive registered form
in authorized denominations. Upon the exchange of the entire principal amount
of a Global Security for individual Securities, such Global Security shall be
cancelled by the Trustee or its agent. Except as provided in the preceding
paragraph, Securities issued in exchange for a Global Security pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or the Security Registrar. The Trustee or the Security
Registrar shall deliver such Securities to the Persons in whose names such
Securities are so registered.
ARTICLE III
THE SECURITIES
SECTION 3.01 General Title; General Limitations; Issuable in Series;
Terms of Particular Series. The aggregate principal amount of Securities that
may be authenticated and delivered and Outstanding under this Indenture is not
limited.
The Securities may be issued in one or more series up to an
aggregate principal amount of Securities as from time to time may be
authorized by the Board of Directors. All Securities of each series under this
Indenture shall in all respects be equally and ratably entitled to the
benefits hereof with respect to such series without preference, priority or
distinction on account of the actual time of the authentication and delivery
or Stated Maturity of the Securities of such series. The Securities of each
series under this Indenture shall rank pari passu in right of payment amongst
themselves. All Securities under this Indenture shall be unsecured unless
otherwise specified in an indenture supplemental hereto and shall constitute
senior indebtedness of the Company ranking on parity with all of the Company's
other unsecured and unsubordinated indebtedness.
Each series of Securities shall be created either by or pursuant to
a Board Resolution or by or pursuant to an indenture supplemental hereto. The
Securities of each such series may bear such date or dates, be payable at such
place or places, be issued with such aggregate principal amounts and in such
authorized denominations, have such Stated Maturity or Maturities, be issuable
at such premium over or discount from their face value, bear interest at such
rate or rates (which may be fixed or floating), from such date or dates,
payable in such
16
installments and on such dates and at such place or places to the Holders of
Securities registered as such on such Regular Record Dates, or may bear no
interest, and may be redeemable or repayable at such Redemption Price or
Prices or Repayment Price or Prices, as the case may be, whether at the option
of the Holder or otherwise, and upon such terms, and may be convertible into
Class A Subordinate Voting Stock or other securities, all as shall be provided
for in or pursuant to the Board Resolution or in or pursuant to the
supplemental indenture creating that series. There may also be established in
or pursuant to a Board Resolution or in or pursuant to a supplemental
indenture prior to the issuance of Securities of each such series, provision
for:
(1) the exchange or conversion of the Securities of that series, at
the option of the Holders thereof or of the Company or otherwise, for or
into new Securities of a different series or other securities or other
property, including shares of Capital Stock of the Company, including
Class A Subordinate Voting Stock, or any subsidiary of the Company or
another Person or securities directly or indirectly convertible into or
exchangeable for any such shares;
(2) a sinking or purchase fund or other analogous obligation;
(3) if other than U.S. dollars, the currency or currencies or units
based on or related to currencies (including Euros) in which the
Securities of such series shall be denominated and in which payments of
principal of, and any premium and interest on, such Securities shall or
may be payable;
(4) if the principal of (and premium, if any) or interest, if any,
on the Securities of such series are to be payable, at the election of
the Company or the Holders thereof or otherwise, in a currency or
currencies or units based on or related to currencies (including Euros)
other than that in which the Securities are stated to be payable, the
period or periods within which, and the terms and conditions upon which,
such election may be made;
(5) if the amount of payments of principal of (and premium, if any)
or interest, if any, on the Securities of such series may be determined
with reference to an index based on (i) a currency or currencies or units
based on or related to currencies (including Euros) other than that in
which the Securities are stated to be payable, (ii) changes in the price
of one or more other securities or groups or indexes of securities or
(iii) changes in the prices of one or more commodities or groups or
indexes of commodities, or any combination of the foregoing, the manner
in which such amounts shall be determined;
(6) a limitation on the aggregate principal amount of Securities of
that series;
(7) the exchange of Securities of that series, at the option of the
Holders thereof or of the Company or otherwise, for other Securities of
the same series of the same aggregate principal amount of a different
authorized kind or different authorized denomination or denominations, or
both;
(8) the appointment by the Trustee of an Authenticating Agent in one
or more places other than the location of the office of the Trustee with
power to act on behalf of
17
the Trustee and subject to its direction in the authentication and
delivery of the Securities of any one or more series in connection with
such transactions as shall be specified in the provisions of this
Indenture or in or pursuant to the Board Resolution or the supplemental
indenture creating such series;
(9) the portion of the principal amount of Securities of the series,
if other than the total principal amount thereof, which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.02 or provable in bankruptcy pursuant to Section 5.04;
(10) any Event of Default with respect to the Securities of such
series, if not set forth herein and any additions, deletions or other
changes to the Events of Default set forth herein that shall be
applicable to the Securities of such series (including a provision making
any Event of Default set forth herein inapplicable to the Securities of
that series);
(11) any covenant solely for the benefit of the Securities of such
series and any additions, deletions or other changes to the provisions of
Article Ten or any definitions relating to such Article that shall be
applicable to the Securities of such series (including a provision making
any Section of such Article inapplicable to the Securities of such
series);
(12) the applicability of Section 4.03 of this Indenture to the
Securities of such series;
(13) if the Securities of the series shall be issued in whole or in
part in the form of a temporary or permanent Global Security or Global
Securities, the terms and conditions, if any, upon which such temporary
or permanent Global Security or Global Securities may be exchanged in
whole or in part for other individual Securities; and the Depositary for
such temporary or permanent Global Security or Global Securities (if
other than the Depositary specified in Section 1.01 hereof); and
(14) any other terms of the series, which shall not be inconsistent
with the provisions of this Indenture,
all upon such terms as may be determined in or pursuant to a Board Resolution
or in or pursuant to a supplemental indenture with respect to such series. All
Securities of the same series shall be substantially identical in tenor and
effect, except as to denomination.
The form of the Securities of each series shall be established
pursuant to the provisions of this Indenture in or pursuant to the Board
Resolution or in or pursuant to the supplemental indenture creating such
series. The Securities of each series shall be distinguished from the
Securities of each other series in such manner, reasonably satisfactory to the
Trustee, as the Board of Directors may determine.
Unless otherwise provided with respect to Securities of a particular
series, the Securities of any series shall be issuable only in registered
form, without coupons.
18
Any terms or provisions in respect of the Securities of any series
issued under this Indenture may be determined pursuant to this Section by
providing in a Board Resolution or supplemental indenture for the method by
which such terms or provisions shall be determined.
SECTION 3.02 Denominations. The Securities of each series shall be
issuable in such denominations and currency as shall be provided in the
provisions of this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series. In the absence of any such
provisions with respect to the Securities of any series, the Securities of
that series shall be issuable only in fully registered form in denominations
of $1,000 and any integral multiple thereof.
SECTION 3.03 Execution, Authentication and Delivery and Dating. Two
Officers shall sign the Securities for the Company by manual or facsimile
signature. If an Officer whose signature is on a Security no longer holds
office at the time the Security is authenticated, the Security shall
nonetheless be valid.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities executed by the Company
to the Trustee for authentication; and the Trustee shall, upon Company Order,
authenticate and deliver such Securities as in this Indenture provided and not
otherwise.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive, in addition to any Officers' Certificate required to be
furnished to the Trustee pursuant to Section 1.02, and the Board Resolution
and any certificate relating to the issuance of the series of Securities
required to be furnished pursuant to Section 2.02, an Opinion of Counsel
substantially to the effect that:
(1) all instruments furnished to the Trustee conform to the
requirements of the Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Securities;
(2) the form and terms (or in connection with the issuance of
medium-term Securities under Section 3.11, the manner of determining the
terms) of such Securities have been established in conformity with the
provisions of this Indenture; and
(3) all laws and requirements with respect to the execution and
delivery by the Company of such Securities have been complied with, the
Company has the corporate power to issue such Securities and such
Securities have been duly authorized and delivered by the Company and,
assuming due authentication and delivery by the Trustee, constitute
legal, valid and binding obligations of the Company enforceable in
accordance with their terms, subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or other laws
and legal principles affecting creditors' rights generally from time to
time in effect and to general principles of equity (whether applied in an
action at law or in equity), and entitled to the benefits of this
Indenture, equally and ratably with all other Securities, if any, of such
series Outstanding;
and, if the authentication and delivery relates to a new series of Securities
created by an indenture supplemental hereto, also stating, in addition to the
requirements set forth in Article
19
Nine, that all laws and requirements with respect to the form and execution by
the Company of the supplemental indenture with respect to that series of
Securities have been complied with, the Company has corporate power to execute
and deliver any such supplemental indenture and has taken all necessary
corporate action for those purposes and any such supplemental indenture has
been executed and delivered by the Company and constitutes the legal, valid
and binding obligation of the Company enforceable in accordance with its
terms, subject to applicable bankruptcy, reorganization, insolvency,
fraudulent transfer, moratorium or other laws and legal principles affecting
creditors' rights generally from time to time in effect and to general
principles of equity (whether applied in an action at law or in equity).
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture.
Unless otherwise provided in the form of Security for any series,
all Securities shall be dated the date of their 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 of an authorized signatory, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
SECTION 3.04 Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and, upon
receipt of the documents required by Section 3.03, together with a Company
Order, the Trustee shall authenticate and deliver, temporary Securities that
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 such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, 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, without charge to the
Holder; and upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of such series of authorized denominations and of like tenor and terms. Until
so exchanged the temporary Securities of such series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 3.05 Registration, Transfer and Exchange. The Company shall
keep or cause to be kept a register (herein sometimes 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,
or of Securities of a particular series, and for transfers of Securities or
20
of Securities of such series. Any such register shall be in written form or in
any other form capable of being converted into written form within a
reasonable time. At all reasonable times the information contained in such
register or registers shall be available for inspection by the Trustee at the
office or agency to be maintained by the Company as provided in Section 10.02.
There shall be only one Security Registrar per series of Securities.
Subject to Section 2.04, upon surrender for transfer of any Security
of any series at the office or agency of the Company in a Place of Payment,
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 such series of any authorized denominations, of a like aggregate
principal amount and Stated Maturity and of like tenor and terms.
Subject to Section 2.04, at the option of the Holder, Securities of
any series may be exchanged for other Securities of such series of any
authorized denominations, of a like aggregate principal amount and Stated
Maturity and of like tenor and terms, 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 Securityholder making the exchange is
entitled to receive.
All Securities issued upon any 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 transfer or exchange.
Every Security presented or surrendered for transfer or 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.
Unless otherwise provided in the Security to be transferred or
exchanged, no service charge shall be made on any Securityholder for any
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Security) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities, other than exchanges pursuant to Sections
3.04 or 9.06 not involving any transfer.
The Company shall not be required (i) to issue, transfer or exchange
any Security 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 such series selected for redemption under Section 11.03 and
ending at the close of business on the date of such mailing, or (ii) to
transfer or exchange any Security so selected for redemption in whole or in
part, except for the portion of such Security not so selected for redemption.
None of the Company, the Trustee, any agent of the Trustee, any
Paying Agent, Conversion Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
21
The Company initially appoints the Trustee to act as Security
Registrar for the Securities on its behalf. The Company may at any time and
from time to time authorize any Person to act as Security Registrar in place
of the Trustee with respect to any series of Securities issued under this
Indenture.
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities. If
(i) any mutilated Security is surrendered to the Trustee, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Security, and (ii) there is delivered to the Company and the
Trustee such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Company or the Trustee
that such Security has been acquired by a Protected Purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Security, a new Security of like tenor, series, Stated Maturity and principal
amount, 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 in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same 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. Unless
otherwise provided with respect to such Security pursuant to Section 3.01,
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 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 registered
Holder on the relevant Regular Record Date by virtue of his having been such
Holder; and, except as hereinafter provided, such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (1)
or clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names any such Securities (or their respective
Predecessor Securities)
22
are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Security and the date
of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holder of each such Security 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 Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names such Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which 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.
If any installment of interest the scheduled payment date of which
is on or prior to the Redemption Date for any Security called for redemption
pursuant to Article Eleven is not paid or duly provided for on or prior to the
Redemption Date in accordance with the foregoing provisions of this Section,
such interest shall be payable as part of the Redemption Price of such
Securities.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon 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. The Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name any
Security is registered in the Security Register as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any),
and (subject to Section 3.07) 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.
23
SECTION 3.09 Cancellation. All Securities surrendered for payment,
redemption, transfer, conversion or exchange or credit against a sinking fund
shall, if surrendered to any Person other than the Trustee, be delivered to
the Trustee and, if not already cancelled, shall be promptly cancelled by it.
The Company may, but is not required to, at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder that the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Security 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. The Trustee shall dispose of all cancelled Securities in accordance
with its customary procedures and shall deliver a certificate of such
disposition to the Company.
SECTION 3.10 Computation of Interest. Unless otherwise provided as
contemplated in Section 3.01, interest on the Securities shall be calculated
on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11 Medium-term Securities. Notwithstanding any contrary
provision herein, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary for the Company to deliver to
the Trustee an Officers' Certificate, Board Resolution, supplemental
indenture, Opinion of Counsel or Company Request otherwise required pursuant
to Sections 2.02, 3.01 and 3.03 at or prior to the time of authentication of
each Security of such series if such documents are delivered to the Trustee or
its agent at or prior to the authentication upon original issuance of the
first Security of such series to be issued; provided that any subsequent
request by the Company to the Trustee to authenticate Securities of such
series upon original issuance shall constitute a representation and warranty
by the Company that as of the date of such request, the statements made in the
Officers' Certificate delivered pursuant to Section 1.02 shall be true and
correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board Resolution
delivered by the Company to the Trustee in the circumstances set forth in the
preceding paragraph may provide that Securities that are the subject thereof
will be authenticated and delivered by the Trustee or its agent on original
issue from time to time upon the telephonic, electronic or written order of
persons designated in such Officers' Certificate, Board Resolution or
supplemental indenture (any such telephonic instructions to be confirmed
promptly in writing by such persons) and that such persons are authorized to
determine, consistent with such Officers' Certificate, supplemental indenture
or Board Resolution, such terms and conditions of said Securities as are
specified in such Officers' Certificate, supplemental indenture or Board
Resolution.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to any series of Securities
(except as to any surviving rights of conversion, transfer or exchange of
Securities of such series expressly provided for herein or in the form of
Security for such series and except as provided in the last sentence of this
Section 4.01), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series, when
24
(1) either
(A) all Securities of that series theretofore authenticated and
delivered (other than (i) Securities of such series that have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06, and (ii) Securities of such series for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
10.03) have been delivered to the Trustee cancelled or for
cancellation; or
(B) all such Securities of that series theretofore
authenticated and delivered but not theretofore delivered to the
Trustee cancelled or for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
cancelled or for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities that have
become due and payable), or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company, if any, with respect to the Securities of such
series; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture with respect to the Securities of such series have been
satisfied.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to any series of Securities, the obligations of the Company to
the Trustee with respect to that series under Section 6.07 shall survive and
the obligations of the Trustee under Sections 4.02 and 10.03 shall survive.
SECTION 4.02 Application of Trust Money. All money and obligations
deposited with the Trustee pursuant to Section 4.01 or Section 4.03 and all
money received by the Trustee in respect of such obligations shall be held in
trust and applied by it, in accordance with the provisions of the series of
Securities in respect of which it was deposited and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
25
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for
whose payment such money and obligations have been deposited with or received
by the Trustee; but such money and obligations need not be segregated from
other funds except to the extent required by law.
SECTION 4.03 Defeasance Upon Deposit of Funds or Government
Obligations. Unless pursuant to Section 3.01 provision is made that this
Section shall not be applicable to the Securities of any series, at the
Company's option, either (a) the Company shall be deemed to have been
Discharged (as defined below) from its obligations with respect to any series
of securities after the applicable conditions set forth below have been
satisfied or (b) the Company shall cease to be under any obligation to comply
with any term, provision or condition set forth in Sections 7.04, 10.01,
10.04, 10.05 and 10.07 and Article Eight (and any other Sections applicable to
such Securities that are determined pursuant to Section 3.01 to be subject to
this provision), and clause (4) and (5) of Section 5.01 of this Indenture (and
any other Events of Default applicable to such Securities that are determined
pursuant to Section 3.01 to be subject to this provision) shall be deemed not
to be Events of Default, with respect to any series of Securities at any time
after the applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series (i) money in an amount, or (ii)
the equivalent in non-callable securities, or securities callable at the
option of the holder thereof, of the government which issued the currency
in which the Securities are denominated or government agencies backed by
the full faith and credit of such government which through the payment of
interest and principal in respect thereof in accordance with their terms;
without reinvestment thereof, will provide, not later than one day before
the due date of any payment, money in an amount, or (iii) a combination
of (i) and (ii), sufficient, in the opinion (with respect to (ii) and
(iii)) of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge each installment of principal (including any mandatory
sinking fund payments) and any premium of, interest on and any repurchase
obligations with respect to the Outstanding Securities of such series on
the dates (including any date of redemption, as contemplated by the
penultimate paragraph of this Section 4.03) such installments of interest
or principal or repurchase obligations are due;
(2) no Event of Default or event (including such deposit) which with
notice or lapse of time would become an Event of Default with respect to
the Securities of such series shall have occurred and be continuing on
the date of such deposit; and
(3) the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of the Company's exercise of its option under this Section 4.03
and will be subject to Federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
option had not been exercised, and, in the case of Securities being
Discharged, accompanied by a ruling to that effect from the Internal
Revenue Service.
26
If any Securities of such series at the time outstanding are to be
redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory sinking fund
requirement, the Company shall make such arrangements as are satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities to receive, from the
trust fund described in clause (1) above, payment of the principal and any
premium of and any interest on such Securities when such payments are due; (B)
the Company's obligations with respect to such Securities under Sections 3.05,
3.06, 4.02, 10.02 and 10.03; and (C) the rights (including but not limited to
rights under Section 6.07), powers, trusts, duties and immunities of the
Trustee hereunder.
ARTICLE V
REMEDIES
SECTION 5.01 Events of Default. "Event of Default", wherever used
herein, means with respect to any series of Securities any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless such event is
either inapplicable to a particular series, as contemplated by Section 4.03 or
otherwise, or it is specifically deleted or modified in the supplemental
indenture creating such series of Securities or in the form of Security for
such series:
(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
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity or Stated Maturity; or
(3) default in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the
Securities of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture in respect of the Securities of
such series (other than a covenant or warranty in respect of the
Securities of such series a default in the performance of which or the
breach of which is elsewhere in this Section specifically dealt with),
all of such covenants and warranties in the Indenture which are not
expressly stated to be for the benefit of a particular series of
Securities being deemed in respect of
27
the Securities of all series for this purpose, and continuance of such
default or breach for a period of 60 days (30 days in the case of any
failure by us to provide timely notice of a Change in Control) after
notice has been given in accordance with this Indenture; or
(5) any Indebtedness for money borrowed by the Company or one of the
Company's Significant Subsidiaries (all or substantially all of the
outstanding Voting Stock of which are owned, directly or indirectly, by
the Company) in an aggregate outstanding principal amount in excess of
$10.0 million is not paid at final maturity or upon acceleration and such
Indebtedness is not discharged, or such acceleration is not cured or
rescinded, within 30 days after written notice as provided in this
Indenture; or
(6) the entry of an order for relief against the Company under the
Federal Bankruptcy Code by a court having jurisdiction in the premises or
a decree or order by a court having jurisdiction in the premises
adjudging the Company a bankrupt or insolvent under any other applicable
Federal or State law, or the entry of a decree or order approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under the Federal
Bankruptcy Code or any other applicable Federal or State law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(7) the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable Federal or State law, or the
consent by it to the filing of any such petition or to the appointment of
a 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; or
(8) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the form
of Security for such series.
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment. If
an Event of Default described in paragraph (1), (2), (3), (4), (5) or (8) (if
the Event of Default under paragraph (4) or (8) is with respect to less than
all series of Securities then Outstanding) of Section 5.01 occurs and is
continuing with respect to any series, then and in each and every such case,
unless the principal of all the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then
Outstanding hereunder (each such series acting as a separate class), by notice
in writing to the Company (and to the Trustee if given by Holders), may
declare the principal amount (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all the Securities of such
series then Outstanding and all accrued interest thereon to be due and payable
28
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture contained to the
contrary notwithstanding. If an Event of Default described in paragraph (4) or
(8) (if the Event of Default under paragraph (4) or (8) is with respect to all
series of Securities then Outstanding) of Section 5.01 occurs and is
continuing, then and in each and every such case, unless the principal of all
the Securities shall have already become due and payable, either the Trustee
or the Holders of not less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one class), by notice in
writing to the Company (and to the Trustee if given by Holders), may declare
the principal amount (or, if any Securities are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms thereof) of all the Securities then Outstanding and all accrued interest
thereon to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities contained to the contrary notwithstanding. If
an Event of Default described in paragraph (6) or (7) of Section 5.01 occurs
and is continuing, then and in each and every such case, unless the principal
of all the Securities shall have already become due and payable, the principal
amount of all of the Securities then Outstanding and all accrued interest
thereon shall automatically be due and payable immediately, anything in this
Indenture or in the Securities contained to the contrary notwithstanding.
At any time after such a declaration of acceleration has been made
with respect to the Securities of any series 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 such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on the Securities of
such series,
(B) the principal of (and premium, if any, on) any Securities
of such series which have become due otherwise than by such
declaration of acceleration, and interest thereon at the rate or
rates prescribed therefor by the terms of the Securities of such
series, to the extent that payment of such interest is lawful,
(C) interest upon overdue installments of interest at the rate
or rates prescribed therefor by the terms of the Securities of such
series to the extent that payment of such interest is lawful, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the
Trustee under Section 6.07;
and
(2) all Events of Default with respect to such series of Securities,
other than the nonpayment of the principal of the Securities of such
series which have become due solely by such acceleration, have been cured
or waived as provided in Section 5.13.
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No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof, or
(3) default is made in the payment of any sinking or purchase fund
or analogous obligation when the same becomes due by the terms of the
Securities of any series,
and any such default continues for any period of grace provided with respect
to the Securities of such series, the Company will, upon demand of the
Trustee, pay to it, for the benefit of the Holder of any such Security (or the
Holders of any such series in the case of clause (3) above), the whole amount
then due and payable on any such Security (or on the Securities of any such
series in the case of clause (3) above) for principal (and premium, if any)
and interest, with interest, to the extent that payment of such interest shall
be legally enforceable, upon the overdue principal (and premium, if any) and
upon overdue installments of interest, at such rate or rates as may be
prescribed therefor by the terms of any such Security (or of Securities of any
such series in the case of clause (3) above); 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 and all other amounts due the
Trustee under Section 6.07.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and
may prosecute such proceeding to judgment or final decree, and may enforce the
same against the Company or any other obligor upon the Securities of such
series and collect the money adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Securities, wherever situated.
If an Event of Default with respect to any series of Securities
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 most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee
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(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the
payment of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceedings or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
and advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and all other amounts due
the Trustee under Section 6.07) and of the Securityholders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by each
Securityholder to make such payment to the Trustee and in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to 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.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or 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 Securityholder in any such proceeding.
SECTION 5.05 Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel, be for the ratable benefit of the Holders of
the Securities of the series in respect of which such judgment has been
recovered.
SECTION 5.06 Application of Money Collected. Any money collected by
the Trustee with respect to a series of Securities pursuant to this Article
Five shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the
Securities of such series 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 to the Trustee under
Section 6.07.
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SECOND: .To the payment of the amounts then due and unpaid upon the
Securities of that series for principal (and premium, if any) and interest, 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 premium, if any) and
interest, respectively.
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 Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Securities of such series, or to obtain or
to seek to obtain priority or preference over any other such Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and proportionate benefit of all the Holders of all
Securities of such series.
SECTION 5.08 Unconditional Right of Securityholders to Receive
Principal, Premium and Interest. Notwithstanding any other provisions 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 premium, if
any) 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 or
repayment, on the Redemption Date or Repayment Date, as the case may be) and
to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder.
SECTION 5.09 Restoration of Rights and Remedies. If the Trustee or
any Securityholder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, then and in every such case the Company, the Trustee
and the Securityholders shall, subject to any determination in
32
such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee and
the Securityholders shall continue as though no such proceeding had been
instituted.
SECTION 5.10 Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders 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 Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Five or by law to the Trustee or
to the Securityholders may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Securityholders, as the case may
be.
SECTION 5.12 Control by Securityholders. 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) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall, by a Responsible
Officer, determine that the proceedings so directed would involve it in
personal liability or be unjustly prejudicial to the Holders not taking
part in such direction, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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 not theretofore cured
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or in the payment of any sinking
or purchase fund or analogous obligation with respect to the Securities
of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series.
33
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 5.14 shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder, or group of Securityholders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities
of any series to which the suit relates, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security on or after the respective Stated
Maturities or Interest Payment Dates expressed in such Security (or, in the
case of redemption or repayment, on or after the Redemption Date or Repayment
Date).
SECTION 5.15 Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.01 Certain Duties and Responsibilities. (a) Except during
the continuance of an Event of Default with respect to any series of
Securities,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect to
the Securities of such series, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
34
(b) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series 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 man would exercise or use under the circumstances in
the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this subsection (c) shall not be construed to limit the effect
of subsection (a) 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 shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 6.01.
SECTION 6.02 Notice of Defaults. Within 90 days after the occurrence
of any default hereunder with respect to Securities of any series, the Trustee
shall transmit by mail to all Securityholders of such series, as their names
and addresses appear in the Security Register, notice of such default
hereunder known to the Trustee in compliance with Section 315(b) of the Trust
Indenture Act, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Security of such series or in the
payment of any sinking or purchase fund installment or analogous obligation
with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Securityholders of such series. For the
purpose of this Section 6.02, the term "default", with respect to Securities
of
35
any series, means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 6.03 Certain Rights of Trustee. Except as otherwise provided
in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 6.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the certificates
of authentication, shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
36
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 6.05 May Hold Securities. The Trustee, any Paying Agent, any
Conversion Agent, the Security Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the
Company with the same rights it would have if it were not Trustee, Paying
Agent, Conversion Agent, Security Registrar or such other agent.
SECTION 6.06 Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.07 Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder as set forth in a separate
agreement between the Company and the Trustee or as otherwise agreed by
the Company and the Trustee (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section 6.07 the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on particular Securities.
SECTION 6.08 Disqualification; Conflicting Interests. The Trustee
for the Securities of any series issued hereunder shall be subject to the
provisions of Section 3.10(b) of the Trust Indenture Act during the period of
time provided for therein. If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and
this Indenture. To the extent permitted by the Trust Indenture Act, the
Trustee shall not be deemed to have a conflicting interest by virtue of being
a trustee under this Indenture with respect to Securities of more than one
series.
37
SECTION 6.09 Corporate Trustee Required; Eligibility. There shall at all times
be a Trustee hereunder with respect to each series of Securities, which shall
be either
(i) a corporation organized and doing business under the laws of the
United States of America or any State of the United States of America,
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by Federal or State authority, or
(ii) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation or order of the Commission, authorized under
such laws to exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination applicable to
United States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising and examining
authority, then for the purposes of this Section, the combined capital and
surplus as set forth in its most recent report of condition shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any Person directly or
indirectly controlling, controlled by, or under common control with the
Company shall serve as Trustee for the Securities of any series issued
hereunder. If at any time the Trustee with respect to any series of Securities
shall cease to be eligible in accordance with the provisions of this Section
6.09, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article Six.
SECTION 6.10 Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article Six shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign with respect to any series of Securities
at any time by giving written notice thereof to the Company. If an instrument
of acceptance by a successor Trustee shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of that series, delivered to the Trustee and to
the Company.
38
(d) If at any time:
(1) the Trustee shall fail to comply with Section 3.10(b) of the
Trust Indenture Act pursuant to Section 6.08 with respect to any series
of Securities after written request therefor by the Company or by any
Securityholder who has been a bona fide Holder of a Security of that
series for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 6.09 with
respect to any series of Securities and shall fail to resign after
written request therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, with respect to the series, or in the case of clause (4), with
respect to all series, or (ii) subject to Section 5.14, any Securityholder who
has been a bona fide Holder of a Security of such series for at least 6 months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to the series, or, in the case
of clause (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur
in the office of the Trustee with respect to any series of Securities for any
cause, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee for that series of Securities. If, within one year after such
resignation, removal or incapacity, or the occurrence of such vacancy, a
successor Trustee with respect to such series of Securities shall be appointed
by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee with respect to such series and
supersede the successor Trustee appointed by the Company with respect to such
series. If no successor Trustee with respect to such series shall have been so
appointed by the Company or the Securityholders of such series and accepted
appointment in the manner hereinafter provided, any Securityholder who has
been a bona fide Holder of a Security of that series for at least 6 months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee
with respect to such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to any series and each appointment of a
successor Trustee with respect to any series by mailing written notice of such
event by first-class mail, postage prepaid, to the Holders of Securities of
that series as their names and addresses appear in the Security Register.
39
Each notice shall include the name of the successor Trustee and the address of
its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the predecessor Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the predecessor
Trustee shall become effective with respect to any series as to which it is
resigning or being removed as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the predecessor Trustee with respect to any such
series; but, on request of the Company or the successor Trustee, such
predecessor Trustee shall, upon payment of its reasonable charges, if any,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the predecessor Trustee, and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such predecessor Trustee hereunder with respect to all or any such
series, subject nevertheless to its lien, if any, provided for in Section
6.07. Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the predecessor Trustee and each successor Trustee with respect to the
Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Securities of any series
as to which the predecessor Trustee is not being succeeded shall continue to
be vested in the predecessor Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and
that each such Trustee shall be Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee.
No successor Trustee with respect to any series of Securities shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible with respect to that series under this
Article.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article Six, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
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SECTION 6.13 Appointment of Authenticating Agent. At any time when
any of the Securities remain Outstanding the Trustee, with the approval of the
Company, may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.06, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, or under the laws of Canada or any
province thereof, authorized under such laws to act as an Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and,
if other than the Company itself, subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and, if other than the Company, to the Company.
The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and, if other than
the Company, to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.13, the Trustee, with the approval of the Company, may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent (other than
an Authenticating Agent appointed at the request of the Company from time to
time) reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
By:
-------------------------------------
As Trustee
By:
-------------------------------------
As Authenticating Agent
By:
-------------------------------------
As Authorized Signatory
SECTION 6.14 Preferential Collection of Claims Against Company. The
Trustee is subject to Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311 (b) of the TIA. A Trustee who has resigned
or been removed shall be subject to Section 311(a) of the TIA to the extent
indicated therein.
ARTICLE VII
SECURITYHOLDERS' LISTS AND
REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01 Company To Furnish Trustee Names and Addresses of
Securityholders. The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, in each year in such form as the Trustee may reasonably require, a list
of the names and addresses of the Holders of Securities of such series as of
such date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished, provided, no such list need be furnished if the
Trustee shall be the Security Registrar of such series.
SECTION 7.02 Preservation of Information; Communications to
Securityholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities
contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders of
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Securities 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.
(b) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least 6 months preceding the date
of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the
Holders of all Securities with respect to their rights under this Indenture or
under such Securities and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the
Trustee shall, within five Business Days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of Holders
of Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by
the Trustee in accordance with Section 7.02(a), and as to the approximate
cost of mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such series or to all
Securityholders, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
7.02(a), a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless, within 5 days after such tender, the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the
best interests of the Holders of Securities of such series or all
Securityholders, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more
of such objections, the Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained have been met and shall
enter an order so declaring, the Trustee shall mail copies of such material to
all Securityholders of such series or all Securityholders, as the case may be,
with reasonable promptness after the entry of such order and the renewal of
such tender; otherwise the Trustee shall be relieved of any obligation or duty
to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in
accordance with Section 7.02(b), regardless of the source from which
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such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 7.02(b).
SECTION 7.03 Reports by Trustee. Within 60 days after June 15 in
each year, and for so long as the Securities remain outstanding, the Trustee
shall transmit by mail to all Securityholders, as their names and addresses
appear in the Security Register, a brief report dated as of such June 15 in
accordance with, but only to the extent required, if any, under Section
3.13(a) of the Trust Indenture Act (but if no event described in such Section
3.13(a) has occurred within the 12 months preceding the report date, no report
need be transmitted). The Trustee shall also comply with Section 313(b)(2) of
the Trust Indenture Act. The Trustee shall also transmit by mail all reports
as required by Section 313(c) of the Trust Indenture Act.
A copy of each such report shall, at the time of such transmission
to Securityholders, shall be mailed to the Company and filed by the Trustee
with the Commission and each stock exchange upon which the Securities are
listed in accordance with Section 313(d) of the Trust Indenture Act. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 7.04 Reports by Company. The Company will
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of
said Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Securityholders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section 7.04 as may be required by rules
and regulations prescribed from time to time by the Commission.
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 8.01 Company May Consolidate, etc., only on Certain Terms.
The Company shall not consolidate with or merge into (whether or not the
Company is the surviving corporation) any other corporation or convey or
transfer its properties and assets substantially as an entirety to any Person,
unless:
(a) (i) the Company is the surviving corporation of such
consolidation or merger or (ii) the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer the properties and assets of the
Company substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America or any State or
the District of Columbia or under the laws of Canada or any province
thereof, and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have happened and be continuing;
and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article Eight and that all conditions
precedent herein provided for relating to such transaction have been
satisfied.
SECTION 8.02 Successor Corporation Substituted. Upon any
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
8.01, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance or 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 successor
corporation had been named as the Company herein and the Company as the
predecessor corporation shall be released from all its obligations under this
Indenture or under the Securities. In the event of any such conveyance or
transfer, the Company as the predecessor corporation may be dissolved, wound
up or liquidated at any time thereafter.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without Consent of
Securityholders. Without notice to or the consent of the Holders of any
Securities, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
45
(1) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(2) to add to the covenants of the Company, or to surrender any
right or power herein conferred upon the Company, for the benefit of the
Holders of the Securities of any or all series (and if such covenants or
the surrender of such right or power are to be for the benefit of less
than all series of Securities, stating that such covenants are expressly
being included or such surrenders are expressly being made solely for the
benefit of one or more specified series); or
(3) to cure any ambiguity or omission herein, to correct or
supplement any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture, which shall
not be inconsistent with the provisions of this Indenture; or
(4) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 3.16(a)(2) of the Trust Indenture Act as in effect
at the date as of which this instrument was executed or any corresponding
provision in any similar federal statute hereafter enacted or to comply
with the Securities Act of 1933, as amended, or any requirements of the
Securities and Exchange Commission; or
(5) to establish any form of Security, including any convertible
securities, as provided in Article Two, and to provide for the issuance
of any series of Securities as provided in Article Three and to set forth
the terms thereof, and/or to add to the rights of the Holders of the
Securities of any series; or
(6) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one
or more series of Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to Section 6.11;
(7) to add any additional Events of Default in respect of the
Securities of any or all series (and if such additional Events of Default
are to be in respect of less than all series of Securities, stating that
such Events of Default are expressly being included solely for the
benefit of one or more specified series); or
(8) to conform this Indenture to the description of the Securities
contained in the Company's prospectus and the applicable prospectus
supplement, relating to the offering of Securities.
No supplemental indenture for the purposes identified in clause (3)
above may be entered into if, in the good faith opinion of the Board of
Directors or the Trustee, to do so would adversely affect the interest of the
Holders of Securities of any series.
46
SECTION 9.02 Supplemental Indentures with Consent of
Securityholders. 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 or indentures, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of the Securities of each
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 Maturity of the principal of, or the Stated Maturity
of any premium on, or the Interest Payment Date for any installment of
interest on, any Security, or reduce the principal amount thereof or the
interest or any premium thereon, or change the method of computing the
amount of principal thereof or interest thereon on any date or change any
Place of Payment where, or 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
Maturity or the Stated Maturity, as the case may be, thereof (or, in the
case of redemption or repayment, on or after the Redemption Date or the
Repayment Date, as the case may be); or
(2) in the case of convertible debt securities, modify the
conversion provisions in a manner materially adverse to the holders of
those debt securities; or
(3) 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
(4) modify or amend any of the provisions of this Section 9.02,
Section 5.13 or Section 10.06, except to increase any such percentage or
to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that 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 Securityholders under this
Section 9.02 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 Nine or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be
47
entitled to receive, 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 (except to the extent required in the case of a
supplemental indenture entered into under Section 9.01(4) or 9.01(6)) be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04 Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article Nine, 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 to the extent provided therein.
SECTION 9.05 Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article Nine shall conform to the
requirements of the Trust Indenture Act as in effect at the date of such
execution.
SECTION 9.06 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article Nine 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 so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
ARTICLE X
COVENANTS
SECTION 10.01 Payment of Principal, Premium and Interest. With
respect to each series of Securities, the Company will duly and punctually pay
the principal of (and premium, if any) and interest on such Securities in
accordance with their terms and this Indenture, and will duly comply with all
the other terms, agreements and conditions contained in, or made in the
Indenture for the benefit of, the Securities of such series.
SECTION 10.02 Maintenance of Office or Agency. The Company will
maintain an office or agency in each Place of Payment where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
transfer, exchange or conversion and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain such 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 principal Corporate Trust Office of
the Trustee, and the Company hereby appoints the Trustee its agent to receive
all such presentations, surrenders, notices and demands.
SECTION 10.03 Money for Security Payments to be Held in Trust. If
the Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or
48
before each due date of the principal of (and premium, if any) or interest on,
any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure 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 (and premium, if any) or interest on, any Securities of such series,
deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal (and premium, if any) or
interest, 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 other than the Trustee for
any series of Securities to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
such payment of principal (and premium, if any) or interest on the
Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any series of
Securities 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 in respect of each and every series of Securities as to
which it seeks to discharge this Indenture or, if for any other purpose, all
sums so held in trust by the Company in respect of all Securities, such sums
to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company 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
49
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. The Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company mail to
the Holders of the Securities as to which the money to be repaid was held in
trust, as their names and addresses appear in the Security Register, a notice
that such moneys remain unclaimed and that, after a date specified in the
notice, which shall not be less than 30 days from the date on which the notice
was first mailed to the Holders of the Securities as to which the money to be
repaid was held in trust, any unclaimed balance of such moneys then remaining
will be paid to the Company free of the trust formerly impressed upon it.
The Company initially authorizes the Trustee to act as Paying Agent
and Conversion Agent for the Securities on its behalf. The Company may at any
time and from time to time authorize one or more Persons to act as Paying
Agent or Conversion Agent in addition to or in place of the Trustee with
respect to any series of Securities issued under this Indenture.
SECTION 10.04 Statement as to Compliance. The Company will deliver
to the Trustee, within 90 days after the end of each fiscal year of the
Company, a written statement signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company,
stating
(1) that a review of the activities of the Company during such year
and of the Company's performance under this Indenture and under the terms
of the Securities has been made under his supervision;
(2) that to the best of his knowledge, based on such review, the
Company has complied with all conditions and covenants under this
Indenture through such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
him and the nature and status thereof; and
(3) the fiscal year end of the Company.
SECTION 10.05 Corporate Existence. Subject to Article Eight the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
SECTION 10.06 Waiver of Certain Covenants. The Company may omit in
respect of any series of Securities, in any particular instance, to comply
with any covenant or condition set forth in this Indenture or in such
Securities of such series, if before or after the time for such compliance the
Holders of at least a majority in principal amount of the Securities at the
time Outstanding of such series shall, by Act of such Securityholders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
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SECTION 10.07 Offer to Repurchase Upon Change in Control. Unless
otherwise specified in a Board Resolution or supplemental indenture with
respect to a series of Securities:
(a) Upon the occurrence of a Change in Control, the Company shall
make an offer (a "Change in Control Offer") to each Holder to repurchase all
or any part (equal to $1,000 or an integral multiple thereof) of each Holder's
Securities at a purchase price equal to 100% of the aggregate principal amount
thereof plus accrued and unpaid interest, if any, to, but excluding, the date
of purchase (the "Change in Control Payment"). Unless otherwise set forth in a
supplemental indenture, within 10 Business Days following a Change in Control,
the Company shall mail a notice to each Holder stating: (1) that the Change in
Control Offer is being made pursuant to this Section 10.07 and that all
Securities tendered will be accepted for payment; (2) the purchase price and
the purchase date, which shall be 30 Business Days after the occurrence of a
Change in Control (the "Change in Control Payment Date"); (3) that any
Security not tendered will continue to accrue interest; (4) the name and
address of each Paying Agent and Conversion Agent, if any; (5) if applicable,
the Conversion Price and any adjustments thereto and information concerning
the Holder's right to convert the Securities; (6) if applicable, that
Securities as to which a Change in Control Payment Notice has been given may
be converted into Class A Subordinate Voting Stock pursuant to this Section
10.07 only to the extent that the Change in Control Payment Notice has been
withdrawn in accordance with the terms of this Indenture; (7) that, unless the
Company defaults in the payment of the Change in Control Payment, all
Securities accepted for payment pursuant to the Change in Control Offer shall
cease to accrue interest after the Change in Control Payment Date; (8) that
Holders electing to have any Securities purchased pursuant to a Change in
Control Offer will be required to surrender the Securities, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Security
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day preceding the Change in Control
Payment Date; (9) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the
Business Day preceding the Change in Control Payment Date, facsimile
transmission, letter or any other written form setting forth the name of the
Holder, the principal amount of Securities delivered for purchase, and a
statement that such Holder is withdrawing its election to have the Securities
purchased; and (10) that Holders whose Securities are being purchased only in
part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered, which unpurchased portion
must be equal to $1,000 in principal amount or an integral multiple thereof.
The Company shall comply with the requirements of Rule 13e-4 and Rule 14e-1
under the Exchange Act, file a Schedule TO or any successor or similar
schedule, if required, under the Exchange Act and comply with any other
federal and state securities laws and regulations thereunder to the extent
such laws and regulations are applicable in connection with the repurchase of
Securities in connection with a Change in Control.
A "Change in Control" shall be deemed to have occurred if any of the
following occurs after the date hereof:
(i) any "person" or "group" (as such terms are defined below) is or
becomes the "beneficial owner" (as defined below), directly or indirectly of
shares of Voting Stock of the Company representing 50% or more of the total
voting power of all outstanding classes of
51
Voting Stock of the Company or has the power, directly or indirectly, to elect
a majority of the members of the Board of Directors of the Company; or
(ii) the Company consolidates with, or merges with or into, another
Person or the Company sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all the assets of the Company, or any Person
consolidates with, or merges with or into, the Company, in any such event
other than pursuant to a transaction in which the Persons that "beneficially
owned" (as defined below), directly or indirectly, shares of Voting Stock of
the Company immediately prior to such transaction "beneficially own" (as
defined below), directly or indirectly, shares of Voting Stock of the Company
representing at least a majority of the total voting power of all outstanding
classes of Voting Stock of the surviving or transferee Person; or
(iii) holders of the Capital Stock of the Company approve any plan
or proposal for the liquidation or dissolution of the Company (whether or not
otherwise in compliance with this Indenture).
For the purpose of the definition of "Change in Control", (i)
"person" and "group" have the meanings given such terms under Section 13(d)
and 14(d) of the Exchange Act or any successor provision to either of the
foregoing, and the term "group" includes any group acting for the purpose of
acquiring, holding or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act (or any successor provision thereto), (ii)
a "beneficial owner" shall be determined in accordance with Rule 13d-3 under
the Exchange Act, as in effect on the date of this Indenture, except that the
number of shares of Voting Stock of the Company shall be deemed to include, in
addition to all outstanding shares of Voting Stock of the Company and Unissued
Shares (as defined below) deemed to be held by the "person" or "group" (as
such terms are defined above) or other Person with respect to which the Change
in Control determination is being made, all Unissued Shares deemed to be held
by all other Persons, and (iii) the terms "beneficially owned" and
"beneficially own" shall have meanings correlative to that of "beneficial
owner". The term "Unissued Shares" means shares of Voting Stock not
outstanding that are subject to options, warrants, rights to purchase or
conversion privileges exercisable within 60 days of the date of determination
of a Change in Control, including the shares of Class A Subordinate Voting
Stock issuable upon conversion of the Securities.
Notwithstanding anything to the contrary set forth in this Section
10.07, a Change in Control will be deemed not to have occurred if:
(i) any of the Stronach Trust, Frank Stronach or any member of his
immediate family, or any of their heirs or personal representatives, continues
to be the "beneficial owner", directly or indirectly, of shares of the
Company's Voting Stock representing 50% or more of the total voting power of
all outstanding classes of the Voting Stock of the Company or continues to
have the power, directly or indirectly, to elect a majority of the members of
the Board of Directors of the Company; or
(ii) in the case of any Securities that are convertible into shares
of the Class A Subordinate Voting Stock, the Closing Sale Price of the Class A
Subordinate Voting Stock for any five Trading Days during the period of the
ten Trading Days immediately preceding the Change in Control is at least equal
to 105% of the conversion price in effect on such day; or
52
(iii) in the case of any Securities that are convertible into shares
of the Class A Subordinate Voting Stock, upon a merger or consolidation, all
the consideration (excluding cash payments for fractional shares and cash
payments pursuant to dissenters' appraisal rights) in the merger or
consolidation constituting the Change in Control consists of Class A
Subordinate Voting Stock traded on a United States national securities
exchange or quoted on NASDAQ (or which will be so traded or quoted when issued
or exchanged in connection with such Change in Control) and as a result of
such transaction or transactions the Securities become convertible solely into
such Class A Subordinate Voting Stock.
(b) A Holder may exercise its rights pursuant to this Section 10.07
upon delivery of a written notice of the exercise of such rights (a "Change in
Control Payment Notice"), as specified in a supplemental indenture or on the
reverse of the Security, to any Paying Agent at any time prior to the close of
business on the Business Day next preceding the Change in Control Payment
Date.
Notwithstanding anything herein to the contrary, any Holder
delivering to a Paying Agent the Change in Control Payment Notice contemplated
by this Section 10.07(b) shall have the right to withdraw such Change in
Control Payment Notice in whole or in a portion thereof that is a principal
amount of $1,000 or in an integral multiple thereof at any time prior to the
close of business on the Business Day next preceding the Change in Control
Payment Date by delivery of a written notice of withdrawal to the Paying Agent
in accordance with Section 10.07(a) hereof.
Upon receipt by any Paying Agent of the Change in Control Payment
Notice specified in this Section 10.07(b), the Holder of the Security in
respect of which such Change in Control Payment Notice was given shall (unless
such Change in Control Payment Notice is withdrawn as specified below)
thereafter be entitled to receive the Change in Control Payment with respect
to such Security. Such Change in Control Payment shall be paid to such Holder
promptly following the later of (i) the Change in Control Payment Date with
respect to such Security (provided the conditions in this Section 10.07(b)
have been satisfied) and (ii) the time of delivery of such Security to a
Paying Agent by the Holder thereof in the manner required by this Section
10.07(b). Securities in respect of which a Change in Control Payment Notice
has been given by the Holder thereof may not be converted into shares of Class
A Subordinate Voting Stock on or after the date of the delivery of such Change
in Control Payment Notice unless such Change in Control Payment Notice has
first been validly withdrawn.
(c) No later than 12:30 p.m. New York City time, on the Change in
Control Payment Date, the Company shall, to the extent lawful, (1) accept for
payment all Securities or portions thereof properly tendered pursuant to the
Change in Control Offer, (2) deposit with the Paying Agent an amount equal to
the Change in Control Payment in respect of all Securities or portions thereof
so tendered and (3) deliver or cause to be delivered to the Trustee the
Securities so accepted together with an Officers' Certificate stating the
aggregate principal amount of Securities or portions thereof being purchased
by the Company. The Paying Agent shall promptly mail to each Holder of
Securities so tendered payment in an amount equal to the purchase price for
the Securities, and the Trustee shall promptly authenticate and mail (or cause
to be transferred by book entry) to each Holder a new Security equal in
principal amount to any unpurchased portion of the Security surrendered by
such Holder, if any; provided that each such
53
new Security shall be in a principal amount of $1,000 or an integral multiple
thereof. The Company shall publicly announce the results of the Change in
Control Offer on or as soon as practicable after the Change in Control Payment
Date.
If a Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the Change in Control Payment of any Security for which a
Change in Control Payment Notice has been tendered and not withdrawn in
accordance with this Indenture then, on the Change in Control Payment Date,
such Security will cease to be outstanding and the rights of the Holder in
respect thereof shall terminate (other than the right to receive the Change in
Control Payment as aforesaid).
(d) Notwithstanding anything to the contrary in this Section 10.07,
the Company shall not be required to make a Change in Control Offer upon a
Change in Control if a third party makes the Change in Control Offer in the
manner, at the times and otherwise in material compliance with the
requirements set forth in this Section 10.07 hereof and all other provisions
of this Indenture applicable to a Change in Control Offer made by the Company
and purchases all Securities validly tendered and not withdrawn under such
Change in Control Offer.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01 Applicability of Article. The Company may reserve the
right to redeem and pay before Stated Maturity all or any part of the
Securities of any series, either by optional redemption, sinking or purchase
fund or analogous obligation or otherwise, by provision therefor in the form
of Security for such series established and approved pursuant to Section 2.02
and on such terms as are specified in such form or in the Board Resolution or
indenture supplemental hereto with respect to Securities of such series as
provided in Section 3.01. Redemption of Securities of any series shall be made
in accordance with the terms of such Securities and, to the extent that this
Article does not conflict with such terms, the succeeding Sections of this
Article.
SECTION 11.02 Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities redeemable at the election of the Company
shall be evidenced by, or made pursuant to authority granted by, a Board
Resolution. In case of any redemption at the election of the Company of any
Securities of any series, the Company shall, at least 20 days but no more than
60 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), furnish the Trustee with an
Officers' Certificate setting forth (a) the clause of this Indenture pursuant
to which the redemption shall occur, (b) the Redemption Date, (c) the
principal amount of Securities to be redeemed, and (d) the Redemption Price.
In the case of any redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
54
SECTION 11.03 Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities of like tenor and terms of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not less
than 20 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 lot or in the Trustee's discretion, on a pro rata basis. Unless
otherwise provided in the terms of a particular series of Securities, the
portions of the principal of Securities so selected for partial redemption
shall be equal to the minimum authorized denomination of the Securities of
such series, or an integral multiple thereof, and the principal amount which
remains outstanding shall not be less than the minimum authorized denomination
for Securities of such series. If less than all the Securities of unlike tenor
and terms of a series are to be redeemed, the particular Securities to be
redeemed shall be selected by the Company. The Trustee shall promptly notify
the Company in writing of the Securities selected for redemption and, in the
case of any Security 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 Security redeemed or to be redeemed only in part,
to the portion of the principal of such Security 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 20 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 Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the Securities to be redeemed, from the
Holder to whom the notice is given and that, after the Redemption Date
upon surrender of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Security;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, and that interest, if any, thereon
shall cease to accrue from and after said date;
(5) the name and address of the Paying Agent and Conversion Agent,
if any;
(6) the Securities called for redemption must be presented and
surrendered to a Paying Agent to collect the Redemption Price;
(7) if applicable, the then current Conversion Price;
55
(8) if applicable, that Holders who wish to convert Conversion
Securities must surrender such Conversion Securities for conversion no
later than the close of business on the Business Day immediately
preceding the Redemption Date and must satisfy the other requirements of
Section 12 hereof;
(9) the Section of this Indenture pursuant to which the Securities
called for redemption are being redeemed;
(10) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Securities; and
(11) that the redemption is on account of a sinking or purchase
fund, or other analogous obligation, if that be the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.05 Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 10.03) an amount of money sufficient to
pay the Redemption Price of all the Securities which are to be redeemed on
that date. The Trustee or the Paying Agent shall promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of amounts necessary to pay the Redemption Price of, and
accrued interest on, all Securities to be redeemed.
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) such Securities shall cease to
bear interest. Upon surrender of such Securities for redemption in accordance
with the notice, such Securities shall be paid by the Company at the
Redemption Price. Installments of interest the Stated Maturity of which is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities registered as such on the relevant Regular 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 shall, until paid, bear interest from the Redemption Date at the
rate borne by the Security, or as otherwise provided in such Security.
SECTION 11.07 Securities Redeemed in Part. Any Security which is to
be redeemed only in part shall be surrendered at the office or agency of the
Company in the Place of Payment with respect to that series (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 Stated Maturity and of like tenor and
terms, of any authorized denomination as requested by such
56
Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
SECTION 11.08 Optional Redemption. (a) The Company shall have the
option to redeem the Securities in whole, or in part, upon not less than 20
nor more than 60 days' notice by mail to Holders of the Securities, at 100% of
the principal amount of the Securities together with accrued interest up to,
but not including, the Redemption Date, subject to any restrictions or
limitations on the Company's right to redeem the Securities of any series that
may be specified in the Board Resolution or indenture supplemental hereto
establishing such series. If the Redemption Date fixed for any series of
Securities falls after a Regular Record Date and on or before the next
succeeding Interest Payment Date, the applicable interest payment shall be
payable to Holders of record of such series of Security on the relevant
Regular Record Date.
Any redemption pursuant to this Section 11.08 shall be made pursuant
to the provisions of Section 11.01 through 11.07 hereof.
SECTION 11.09 Mandatory Redemption; No Sinking Fund. Unless
otherwise specified in an indenture supplemental hereto, the Company shall not
be required to (a) make mandatory redemption payments with respect to the
Securities or (b) set aside any funds for the redemption of the Securities.
ARTICLE XII
CONVERSION
SECTION 12.01 Applicability of Article. The Company may grant the
Holders of Securities of any series the right to convert the Securities of
such series into shares of Class A Subordinate Voting Stock or other
securities, by provision therefor in the form of Security for such series
established and approved pursuant to Section 2.02 and on such terms as are
specified in such form or in the Board Resolution or indenture supplemental
hereto with respect to Securities of such series as provided in Section 3.01
(such Securities of such series hereinafter called "Convertible Securities").
Conversion of Convertible Securities of any series shall be made in accordance
with the terms of such Convertible Securities and, to the extent that this
Article Twelve does not conflict with such terms, the succeeding Sections of
this Article Twelve.
SECTION 12.02 Conversion Privilege. Unless otherwise specified in
the Board Resolution or supplemental indenture hereto with respect to a series
of Convertible Securities, a Holder of a Convertible Security may convert it
into fully paid and nonassessable shares of Class A Subordinate Voting Stock
at any time prior to the close of business on the last Business Day prior to
maturity at the Conversion Price (as defined below) then in effect, except
that, with respect to any Convertible Security called for redemption or
submitted or presented for purchase pursuant to Section 10.07, such conversion
right shall terminate at the close of business on the Business Day immediately
preceding the redemption date or Change in Control Payment Date, as the case
may be (unless the Company shall default in making the redemption payment or
Change in Control Payment, as the case may be, when it becomes due, in which
case the conversion right shall terminate at the close of business on the date
such default is cured and such Convertible Security is redeemed or purchased,
as the case may be). The number of shares of Class A Subordinate Voting Stock
issuable upon conversion of a Convertible Security will be
57
determined by the Company by dividing the principal amount of such Convertible
Security by the conversion price in effect on the Conversion Date (the
"Conversion Price").
The initial Conversion Price will be stated in the Convertible
Security and will be subject to adjustment as provided for in this Article
Twelve.
A Holder may convert a portion of a Convertible Security equal to
any integral multiple of $1,000. Provisions of this Indenture that apply to
conversion of all of a Convertible Security also apply to conversion of a
portion of it.
A Convertible Security in respect of which a Holder has delivered a
Change in Control Payment Notice pursuant to Section 10.07 exercising the
option of such Holder to require the Company to purchase such Convertible
Security may be converted only if such Change in Control Payment Notice is
withdrawn by a written notice of withdrawal delivered to a Paying Agent prior
to the close of business on the Business Day immediately preceding the Change
in Control Payment Date in accordance with Section 10.07.
A Holder of Convertible Securities is not entitled to any rights of
a holder of Class A Subordinate Voting Stock until, and only to the extent
that, such Holder has converted its Convertible Securities to Class A
Subordinate Voting Stock pursuant to this Article Twelve.
SECTION 12.03 Conversion Procedure. To convert a Convertible
Security, a Holder must satisfy the requirements that will be set forth in the
Convertible Securities or a supplemental indenture. The date on which the
Holder satisfies all those requirements is the conversion date (the
"Conversion Date"). As soon as practicable after the Conversion Date, the
Company shall deliver or cause to be delivered to the Holder a certificate for
the number of whole shares of Class A Subordinate Voting Stock issuable upon
the conversion and a check for any fractional share determined pursuant to
Section 12.04 hereof. The Person in whose name the certificate is registered
shall become the stockholder of record on the Conversion Date and, as of such
date, such Person's rights as a Holder shall cease; provided, however, that no
surrender of a Convertible Security on any date when the stock transfer books
of the Company shall be closed shall be effective to constitute the Person
entitled to receive the shares of Class A Subordinate Voting Stock upon such
conversion as the stockholder of record of such shares of Class A Subordinate
Voting Stock on such date, but such surrender shall be effective to constitute
the Person entitled to receive such shares of Class A Subordinate Voting Stock
as the stockholder of record thereof for all purposes at the close of business
on the next succeeding day on which such stock transfer books are open;
provided further, however, that such conversion shall be at the Conversion
Price in effect on the date that such Convertible Security shall have been
surrendered for conversion, as if the stock transfer books of the Company had
not been closed.
For the avoidance of doubt, the Conversion Agent shall not have a
duty to convert or deliver shares of Class A Subordinate Voting Stock;
provided that the Conversion Agent is not the Company or any of its
Subsidiaries.
No payment or other adjustment shall be made for accrued interest or
dividends or distributions on any Class A Subordinate Voting Stock issued upon
conversion of the Convertible Securities. If any Convertible Securities are
converted during any period after the
58
close of business on any record date for the payment of an installment of
interest but before the opening of business on the next Interest Payment Date,
interest for such Convertible Securities will be paid on the next Interest
Payment Date, notwithstanding such conversion, to the Holders of such
Convertible Securities. Any Convertible Securities that are, however,
delivered to the Company for conversion during the period after any record
date but before the opening of business on the next Interest Payment Date
must, except as described in the next sentence, be accompanied by funds equal
to the interest payable on such Interest Payment Date on the principal amount
of Convertible Securities being converted. If the Company has issued a
redemption notice or made a Change in Control Offer with respect to the
Convertible Securities during that period from the close of business on a
record date and ending on the opening of business on the first Business Day
after the next Interest Payment Date (or if such Interest Payment Date is not
a Business Day, the second Business Day after the Interest Payment Date) and
the Holders surrender the Convertible Securities or portions thereof for
conversion on a date that is not an Interest Payment Date, Holders shall
receive interest for the period from the Interest Payment Date next preceding
the Conversion Date (it being understood that such Holders that surrender
Convertible Securities or portions thereof for conversion following any
redemption notice or Change in Control Offer shall not be required to pay such
funds as described in the third sentence of this paragraph).
If a Holder converts more than one Convertible Security at the same
time, the number of whole shares of Class A Subordinate Voting Stock issuable
upon the conversion shall be based on the total principal amount of
Convertible Securities converted.
Upon surrender of a Convertible Security that is converted in part,
the Trustee shall authenticate for the Holder a new Convertible Security equal
in principal amount to the unconverted portion of the Convertible Security
surrendered.
SECTION 12.04 Fractional Shares. The Company will not issue
fractional shares of Class A Subordinate Voting Stock upon conversion of a
Convertible Security. In lieu thereof, the Company will pay an amount in cash
based upon the Closing Sale Price of the Class A Subordinate Voting Stock on
the last Trading Day prior to the Conversion Date.
SECTION 12.05 Taxes on Conversion. The issuance of certificates for
shares of Class A Subordinate Voting Stock upon the conversion of any
Convertible Security shall be made without charge to the converting Holder for
such certificates or for any tax in respect of the issuance of such
certificates, and such certificates shall be issued in the respective names
of, or in such names as may be directed by, the Holder or Holders of the
converted Convertible Security; provided, however, that in the event that
certificates for shares of Class A Subordinate Voting Stock are to be issued
in a name other than the name of the Holder of the Convertible Security
converted, such Convertible Security, when surrendered for conversion, shall
be accompanied by an instrument of transfer, in form satisfactory to the
Company, duly executed by the registered holder thereof or his duly authorized
attorney; and provided further, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name other
than that of the Holder of the converted Convertible Security, and the Company
shall not be required to issue or deliver such certificates unless and until
the Person or Persons requesting the issuance thereof shall have paid
59
to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid or is not applicable.
SECTION 12.06 Company to Provide Stock. The Company shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Class A Subordinate Voting Stock, solely for the
purpose of issuance upon conversion of Convertible Securities of the series
entitled to such conversion as herein provided, a sufficient number of shares
of Class A Subordinate Voting Stock to permit the conversion of all applicable
outstanding Convertible Securities for shares of Class A Subordinate Voting
Stock. All shares of Class A Subordinate Voting Stock which may be issued upon
conversion of the Convertible Securities shall be duly authorized, validly
issued, fully paid and nonassessable and free of preemptive rights and free of
any lien or adverse claim when so issued.
SECTION 12.07 Adjustment of Conversion Price. Unless otherwise
specified in the Board Resolution or supplemental indenture hereto with
respect a series of Convertible Securities, the Conversion Price shall be
subject to adjustment from time to time as follows:
(a) Stock split and combinations. In case the Company, at any time
or from time to time after the issuance date of Convertible Securities, (a)
subdivides or splits the outstanding shares of its Class A Subordinate Voting
Stock, (b) combines or reclassifies the outstanding shares of its Class A
Subordinate Voting Stock into a smaller number of shares or (c) issues by
reclassification of the shares of its Class A Subordinate Voting Stock any
shares of its Capital Stock, then the Conversion Price in effect immediately
prior to that event or the record date for that event, whichever is earlier,
will be adjusted so that the Holder of any Convertible Securities thereafter
surrendered for conversion will be entitled to receive the number of shares of
the Company's Class A Subordinate Voting Stock or of its other securities
which the Holder would have owned or have been entitled to receive after the
occurrence of any of the events described above had those Convertible
Securities been surrendered for conversion immediately before the occurrence
of that event or the record date for that event, whichever is earlier;
(b) Stock Dividends in Class A Subordinate Voting Stock. In case the
Company, at any time or from time to time after the issuance date of
Convertible Securities, pays a dividend or makes a distribution in shares of
its Class A Subordinate Voting Stock on any class of its Capital Stock, other
than dividends or distributions of shares of Class A Subordinate Voting Stock
or other securities with respect to which adjustments are provided in
paragraph (a) above or with respect to payments of interest or dividend
obligations with respect to a particular series of Capital Stock in accordance
with the terms of such Capital Stock, the Conversion Price will be adjusted by
multiplying (a) such Conversion Price by (b) a fraction, the numerator of
which will be the number of shares of Class A Subordinate Voting Stock
outstanding as of the close of business on the record date for such dividend
or distribution and the denominator of which will be the sum of that number of
shares and the total number of shares issued in that dividend or distribution;
(c) Issuance of Rights or Warrants. In case the Company issues to
all or substantially all holders of its Class A Subordinate Voting Stock
rights or warrants entitling those holders for a period of not more than 60
days to subscribe for or purchase its Class A Subordinate Voting Stock or
securities convertible into its Class A Subordinate Voting Stock at a
60
price per share or Conversion Price per share less than the current market
price per share of Class A Subordinate Voting Stock (as determined in
accordance with subsection (g) of this Section 12.07), the Conversion Price in
effect immediately before the close of business on the record date fixed for
determination of stockholders entitled to receive those rights or warrants
will be reduced by multiplying such Conversion Price by a fraction, the
numerator of which is the sum of the number of shares of the Company's Class A
Subordinate Voting Stock outstanding at the close of business on that record
date and the number of shares of Class A Subordinate Voting Stock that the
aggregate offering price of the total number of shares of the Company's Class
A Subordinate Voting Stock so offered for subscription or purchase would
purchase at the current market price per share of Class A Subordinate Voting
Stock (as determined in accordance with subsection (g) of this Section 12.07),
and the denominator of which is the sum of the number of shares of Class A
Subordinate Voting Stock outstanding at the close of business on that record
date and the number of additional shares of the Company's Class A Subordinate
Voting Stock so offered for subscription or purchase. For purposes of this
Section 12.07(c), the issuance of rights or warrants to subscribe for or
purchase securities convertible into shares of the Company's Class A
Subordinate Voting Stock will be deemed to be the issuance of rights or
warrants to purchase shares of the Company's Class A Subordinate Voting Stock
into which those securities are convertible at an aggregate offering price
equal to the sum of the aggregate offering price of those securities and the
minimum aggregate amount, if any, payable upon conversion of those securities
into shares of the Company's Class A Subordinate Voting Stock. This adjustment
will be made successively whenever any such event occurs. For purposes of this
Section 12.07(c), in the event the Company implements a shareholders rights
plan (a "Rights Plan"), upon conversion of Convertible Securities into Class A
Subordinate Voting Stock, to the extent that the Rights Plan has been
implemented and is still in effect upon such conversion, the Holders of
Convertible Securities will receive, in addition to the Class A Subordinate
Voting Stock, the rights described therein (whether or not the rights have
separated from the Class A Subordinate Voting Stock at the time of
conversion), upon the terms of and subject to the limitations set forth in the
Rights Plan. Any distribution of rights or warrants pursuant to a Rights Plan
complying with the requirements set forth in the immediately preceding
sentence of this paragraph shall not constitute a distribution of rights or
warrants for purposes of this Section 12.07(c);
(d) Distribution of Indebtedness, Securities or Assets. In case the
Company shall distribute to all or substantially all holders of its Class A
Subordinate Voting Stock any shares of Capital Stock of the Company (other
than Class A Subordinate Voting Stock), evidences of indebtedness or other
non-cash assets (including securities of any Person other than the Company but
excluding dividends or distributions referred to in subsection (b) of this
Section 12.07), or shall distribute to all or substantially all holders of its
Class A Subordinate Voting Stock rights or warrants to subscribe for or
purchase any of its securities (excluding those rights and warrants referred
to in subsection (c) of this Section 12.07 and also excluding the distribution
of rights to all holders of Class A Subordinate Voting Stock pursuant to the
adoption of a Rights Plan or the detachment of such rights under the terms of
such Rights Plan), then in each such case the Conversion Price in effect
immediately before the close of business on the record date fixed for the
determination of stockholders entitled to such distribution shall be adjusted
so that the same shall equal the price determined by multiplying the current
Conversion Price by a fraction of which the numerator shall be the current
market price per share (determined in accordance with subsection (g) of this
Section 12.07) of the Class A Subordinate Voting Stock on the record date
fixed for the determination of stockholders entitled to such
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distribution less the fair market value on such record date (as determined by
the Board of Directors, whose determination shall be conclusive evidence of
such fair market value and which shall be evidenced by an Officers'
Certificate delivered to the Trustee) of the portion of the Capital Stock,
evidences of indebtedness or other non-cash assets so distributed or of such
rights or warrants attributable to one share of Class A Subordinate Voting
Stock (determined on the basis of the number of shares of Class A Subordinate
Voting Stock outstanding on the record date), and of which the denominator
shall be the current market price per share (determined in accordance
subsection (g) of this Section 12.07) of the Class A Subordinate Voting Stock
on such record date. Such adjustment shall be made successively whenever any
such distribution is made and shall become effective immediately after the
record date for the determination of stockholders entitled to receive such
distribution.
(e) All-cash Distributions. In case the Company shall, by dividend
or otherwise, at any time distribute (a "Triggering Distribution") to all or
substantially all holders of its Class A Subordinate Voting Stock all-cash
distributions in an aggregate amount that, together with the aggregate amount
of (A) any cash and the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive evidence thereof and which
shall be evidenced by an Officers' Certificate delivered to the Trustee) of
any other consideration payable in respect of any tender offer by the Company
or a Subsidiary of the Company for Class A Subordinate Voting Stock
consummated within the 12 months preceding the date of payment of the
Triggering Distribution and in respect of which no Conversion Price adjustment
pursuant to this Section 12.07 has been made and (B) all other cash
distributions to all or substantially all holders of its Class A Subordinate
Voting Stock made within the 12 months preceding the date of payment of the
Triggering Distribution and in respect of which no Conversion Price adjustment
pursuant to this Section 12.07 has been made, exceeds an amount equal to
10.0%, or such other percentage as may be specified in the Board Resolution or
indenture supplemental hereto for any series of Convertible Securities, of the
product of the current market price per share of Class A Subordinate Voting
Stock (as determined in accordance with subsection (g) of this Section 12.07)
on the Business Day (the "Determination Date") immediately preceding the day
on which such Triggering Distribution is declared by the Company multiplied by
the sum of the number of shares of Class A Subordinate Voting Stock and the
number of shares of Class B Stock of the Company each outstanding on the
Determination Date (excluding shares held in the treasury of the Company), the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying such Conversion Price in effect immediately prior to
the Determination Date by a fraction of which the numerator shall be the
current market price per share of the Class A Subordinate Voting Stock (as
determined in accordance with subsection (g) of this Section 12.07) on the
Determination Date less the sum of the aggregate amount of cash and the
aggregate fair market value (determined as aforesaid in this Section 12.07(d))
of any such other consideration so distributed, paid or payable within such 12
months (including, without limitation, the Triggering Distribution)
attributable to one share of Class A Subordinate Voting Stock (determined on
the basis of the number of shares of Class A Subordinate Voting Stock
outstanding on the Determination Date) and the denominator shall be such
current market price per share of the Class A Subordinate Voting Stock (as
determined in accordance with subsection (g) of this Section 12.07) on the
Determination Date, such reduction to become effective immediately prior to
the opening of business on the day following the date on which the Triggering
Distribution is paid.
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(f) Tender Offer Purchases. In case any tender offer made by the
Company or any of its Subsidiaries for Class A Subordinate Voting Stock shall
expire and such tender offer (as amended upon the expiration thereof) shall
involve the payment of aggregate consideration in an amount (determined as the
sum of the aggregate amount of cash consideration and the aggregate fair
market value (as determined by the Board of Directors, whose determination
shall be conclusive evidence thereof and which shall be evidenced by an
Officers' Certificate delivered to the Trustee thereof) of any other
consideration) that, together with the aggregate amount of (A) any cash and
the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence thereof and which shall be
evidenced by an Officers' Certificate delivered to the Trustee) of any other
consideration payable in respect of any other tender offers by the Company or
any Subsidiary of the Company for Class A Subordinate Voting Stock consummated
within the 12 months preceding the date of the Expiration Date (as defined
below) and in respect of which no Conversion Price adjustment pursuant to this
Section 12.07 has been made and (B) all cash distributions to all or
substantially all holders of its Class A Subordinate Voting Stock made within
the 12 months preceding the Expiration Date and in respect of which no
Conversion Price adjustment pursuant to this Section 12.07 has been made,
exceeds an amount equal to 10.0%, or such other percentage as may be specified
in the Board Resolution or indenture supplemental hereto for any series of
Convertible Securities, of the product of the current market price per share
of Class A Subordinate Voting Stock (as determined in accordance with
subsection (g) of this Section 12.07) as of the last date (the "Expiration
Date") tenders could have been made pursuant to such tender offer (as it may
be amended) (the last time at which such tenders could have been made on the
Expiration Date is hereinafter sometimes called the "Expiration Time")
multiplied by the sum of the number of shares of Class A Subordinate Voting
Stock and the number of shares of Class B Stock of the Company each
outstanding (including tendered shares but excluding any shares held in the
treasury of the Company) at the Expiration Time, then, immediately prior to
the opening of business on the day after the Expiration Date, the Conversion
Price shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to close of
business on the Expiration Date by a fraction of which the numerator shall be
the product of the number of shares of Class A Subordinate Voting Stock
outstanding (including tendered shares but excluding any shares held in the
treasury of the Company) at the Expiration Time multiplied by the current
market price per share of the Class A Subordinate Voting Stock (as determined
in accordance with subsection (g) of this Section 12.07) on the Trading Day
next succeeding the Expiration Date and the denominator shall be the sum of
(x) the aggregate consideration (determined as aforesaid) payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender offer) of all shares validly tendered and not withdrawn as of
the Expiration Time (the shares deemed so accepted, up to any such maximum,
being referred to as the "Purchased Shares") and (y) the product of the number
of shares of Class A Subordinate Voting Stock outstanding (less any Purchased
Shares and excluding any shares held in the treasury of the Company) at the
Expiration Time and the current market price per share of Class A Subordinate
Voting Stock (as determined in accordance with subsection (g) of this Section
12.07) on the Trading Day next succeeding the Expiration Date, such reduction
to become effective immediately prior to the opening of business on the day
following the Expiration Date. In the event that the Company would be
obligated to purchase shares pursuant to any such tender offer, but the
Company is permanently prevented by applicable law from effecting any or all
such purchases or any or all such purchases are rescinded, the Conversion
63
Price shall again be adjusted to be the Conversion Price which would have been
in effect based upon the number of shares actually purchased. If the
application of this Section 12.07(f) to any tender offer would result in an
increase in the Conversion Price, no adjustment shall be made for such tender
offer under this Section 12.07(f).
For purposes of this Section 12.07(f), the term "tender offer" shall
mean and include both tender offers and exchange offers, all references to
"purchases" of shares in tender offers (and all similar references) shall mean
and include both the purchase of shares in tender offers and the acquisition
of shares pursuant to exchange offers, and all references to "tendered shares"
(and all similar references) shall mean and include shares tendered in both
tender offers and exchange offers.
(g) For the purpose of any computation under subsections (b), (c),
(d) and (e) of this Section 12.07, the current market price per share of Class
A Subordinate Voting Stock on any date shall be deemed to be the average of
the daily Closing Sale Prices for the 30 consecutive Trading Days commencing
45 Trading Days before (i) the Determination Date or the Expiration Date, as
the case may be, with respect to distributions or tender offers under
subsections (e) and (f) of this Section 12.07 or (ii) the record date with
respect to distributions, issuances or other events requiring such computation
under subsection (c), (d) or (e) of this Section 12.07. If no such prices are
available, the current market price per share shall be the fair value of one
share of Class A Subordinate Voting Stock as determined by the Board of
Directors (which shall be evidenced by an Officers' Certificate delivered to
the Trustee).
(h) If any distribution in respect of which an adjustment to the
Conversion Price is required to be made therefor as of the record date or
Determination Date or Expiration Date is not thereafter made or paid by the
Company for any reason, the Conversion Price shall be readjusted to the
Conversion Price which would then be in effect if such record date had not
been fixed or the effective date or Determination Date or Expiration Date had
not occurred.
SECTION 12.08 No Adjustment. No adjustment in the Conversion Price
shall be required until cumulative adjustments amount to at least 1% of the
Conversion Price as last adjusted; provided, however, that any adjustments
which by reason of this Section 12.07 are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Article Twelve shall be made to the nearest cent or to
the nearest one-hundredth of a share, as the case may be. No adjustment need
be made for rights to purchase Class A Subordinate Voting Stock pursuant to a
Company plan for reinvestment of dividends or interest. No adjustment need be
made for a change in the par value of the Class A Subordinate Voting Stock.
SECTION 12.09 Other Adjustments. (a) In the event that, as a result
of an adjustment made pursuant to Section 12.07 hereof, the Holder of any
Convertible Security thereafter surrendered for conversion shall become
entitled to receive any shares of Capital Stock of the Company other than
shares of its Class A Subordinate Voting Stock, thereafter the Conversion
Price of such other shares so receivable upon conversion of any Convertible
Security shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to
Class A Subordinate Voting Stock contained in this Article Twelve.
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(b) In the event that shares of Class A Subordinate Voting Stock are
not delivered after the expiration of any of the rights or warrants referred
to in Section 12.07(c) and (d) hereof, the Conversion Price shall be
readjusted to the Conversion Price which would otherwise be in effect had the
adjustment made upon the issuance of such rights or warrants been made on the
basis of delivery of only the number of shares of Class A Subordinate Voting
Stock actually delivered.
SECTION 12.10 Adjustments for Tax Purposes. The Company may make
such reductions in the Conversion Price, in addition to any required by
Section 12.07 hereof, as it determines in its discretion to be advisable in
order that any stock dividend, subdivision of shares, distribution or rights
to purchase stock or securities or distribution of securities convertible into
or exchangeable for stock made by the Company to its stockholders will not be
taxable to the recipients thereof.
SECTION 12.11 Notice of Adjustment. Whenever the Conversion Price is
adjusted, the Company shall promptly mail to Holders at the addresses
appearing on the Security Registrar's books a notice of the adjustment and
file with the Trustee an Officers' Certificate briefly stating the facts
requiring the adjustment and the manner of computing it. The Officers'
Certificate shall be conclusive evidence of the correctness of such
adjustment. Unless and until a Responsible Officer of the Trustee shall
receive written notice of an adjustment of the Conversion Price, the Trustee
may assume without inquiry that the Conversion Price has not been adjusted and
that the last Conversion Price of which it has knowledge remains in effect.
SECTION 12.12 Notice of Certain Transactions. In the event that:
(1) the Company takes any action which would require an adjustment
in the Conversion Price;
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 12.13; or
(3) there is a dissolution or liquidation of the Company;
the Company shall mail to Holders Convertible Securities at the
addresses appearing on the Registrar's books and the Trustee a notice stating
the proposed record or effective date, as the case may be, to permit a Holder
of a Convertible Security to convert such Convertible Security into shares of
Class A Subordinate Voting Stock prior to the record date for or the effective
date of the transaction in order to receive the rights, warrants, securities
or assets which a holder of shares of Class A Subordinate Voting Stock on that
date may receive. The Company shall mail the notice at least 15 days before
such date; however, failure to mail such notice or any defect therein shall
not affect the validity of any transaction referred to in clause (1), (2) or
(3) of this Section 12.12.
SECTION 12.13 Effect of Reclassifications, Consolidations, Mergers
or Sales on Conversion Privilege. If any of the following shall occur, namely:
(i) any reclassification or change of outstanding shares of Class A
Subordinate Voting Stock issuable upon conversion of Convertible Securities
(other than a change in par value, or from par value to no par value, or from
no par value to par value, or as a result of a subdivision or combination or as
a result of a
65
reincorporation of the Company in another jurisdiction), (ii) any
consolidation or merger to which the Company is a party other than a merger in
which the Company is the continuing corporation and which does not result in
any reclassification of, or change (other than a change in name, or par value,
or from par value to no par value, or from no par value to par value or as a
result of a subdivision or combination or as a result of a reincorporation of
the Company in another jurisdiction) in, outstanding shares of Class A
Subordinate Voting Stock or (iii) any sale or conveyance of all or
substantially all the property or business of the Company as an entirety, then
the Company, or such successor or purchasing corporation, as the case may be,
shall, as a condition precedent to such reclassification, change,
consolidation, merger, sale or conveyance, execute and deliver to the Trustee
a supplemental indenture in form reasonably satisfactory to the Trustee
providing that the Holder of each Convertible Security then outstanding shall
have the right to convert such Convertible Security into the kind and amount
of shares of stock and other securities and property (including cash)
receivable upon such reclassification, change, consolidation, merger, sale or
conveyance by a Holder of the number of shares of Class A Subordinate Voting
Stock deliverable upon conversion of such Convertible Security immediately
prior to such reclassification, change, consolidation, merger, sale or
conveyance (assuming that such holder failed to exercise such holder's rights
of election, if any, as to the kind or amount of shares of stock and other
securities and property (including cash) receivable upon such
reclassification, change, consolidation, merger, sale or conveyance). In the
event that the shares of Class A Subordinate Voting Stock are exchanged or
substituted for other securities in connection with any such reclassification,
change, consolidation, merger, sale or conveyance, such supplemental indenture
shall provide for adjustments of the Conversion Price which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Price
provided for in this Article Twelve. If, in the case of any such
consolidation, merger, sale or conveyance, the stock or other securities and
property (including cash) receivable thereupon by a holder of Class A
Subordinate Voting Stock includes shares of stock or other securities and
property of a corporation other than the successor or purchasing corporation,
as the case may be, in such consolidation, merger, sale or conveyance, then
such supplemental indenture shall contain such additional provisions to
protect the interests of the Holders of the Convertible Securities as the
Board of Directors of the Company shall reasonably consider necessary by
reason of the foregoing. The provision of this Section 12.13 shall similarly
apply to successive consolidations, mergers, sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 12.13, the Company shall promptly file with the
Trustee an Officers' Certificate briefly stating the reasons therefor, the
kind or amount of shares of stock or securities or property (including cash)
receivable by Holders of the Convertible Securities upon the conversion of
their Convertible Securities after any such reclassification, change,
consolidation, merger, sale or conveyance and any adjustment to be made with
respect thereto.
SECTION 12.14 Trustee's Disclaimer. The Trustee has no duty to
determine when an adjustment under this Article Twelve should be made, how it
should be made or what such adjustment should be, but may accept as conclusive
evidence of the correctness of any such adjustment, and shall be protected in
relying upon, the Officers' Certificate with respect thereto which the Company
is obligated to file with the Trustee pursuant to Section 12.11 hereof. The
Trustee makes no representation as to the validity or value of any securities
or assets issued upon
66
conversion of Convertible Securities, and the Trustee shall not be responsible
for the Company's failure to comply with any provisions of this Article
Twelve.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 12.13, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with
the Trustee pursuant to Section 12.13 hereof.
SECTION 12.15 Voluntary Reduction. The Company from time to time
may, subject to approval from the Toronto Stock Exchange, reduce the
Conversion Price by any amount for any period of time if the period is at
least 20 days and if the Board of Directors determines that such reduction
would be in the best interest of the Company and the Company provides 15 days'
prior notice to the Holders of Convertible Securities of any reduction in the
Conversion Price; provided, however, that in no event may the Company reduce
the Conversion Price to be less than the par value of a share of Class A
Subordinate Voting Stock.
Except as set forth in this Article Twelve, the Company shall not
adjust the Conversion Price for (a) the issuance of its Class A Subordinate
Voting Stock or any securities convertible into or exchangeable therefor or
(b) the right to purchase its Class A Subordinate Voting Stock or any
securities convertible or exchangeable therefor.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
MAGNA ENTERTAINMENT CORP.
By:
--------------------------------------
Name:
Title:
Attest:
- ---------------------------------
[TRUSTEE]
By:
--------------------------------------
Name:
Title:
Attest:
- ---------------------------------
68
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ____ day of _____________, _______ before me personally came
__________, to me known, who, being by me duly sworn, did depose and say that
he resides at ___________; that he is __________________ of Magna
Entertainment Corp., one of the parties described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to that instrument is such corporate seal; that it was
affixed by authority of the board of directors of the corporation; and that he
signed his name thereto by like authority.
------------------------------
Name
- --------------------
[Notarial Seal]
69
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the _________ day of __________, _____ before me personally came
_______, to me known, who, being by me duly sworn, did depose and say that he
resides at _____________; that he is __________________ of [trustee], one of
the parties described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to that
instrument is such corporate seal; that it was affixed by authority of the
board of directors of the corporation; and that he signed his name thereto by
like authority.
------------------------------
Name
- --------------------
[Notarial Seal]
70