EXHIBIT 4.2
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PROMUS HOTELS, INC.
AS THE COMPANY
PROMUS HOTEL CORPORATION
AS THE GUARANTOR
AND
SOUTHTRUST BANK OF ALABAMA, NATIONAL ASSOCIATION
AS TRUSTEE
INDENTURE
DATED AS OF ____________, 1996
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TABLE OF CONTENTS
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RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Other Definitions. . . . . . . . . . . . . . . . . . . . 8
SECTION 1.3 Incorporation by Reference of Trust Indenture Act. . . . 9
SECTION 1.4 Rules of Construction. . . . . . . . . . . . . . . . . . 9
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.2 Execution and Authentication . . . . . . . . . . . . . . 10
SECTION 2.3 Amount Unlimited; Issuable in Series . . . . . . . . . . 12
SECTION 2.4 Denomination and Date of Securities;
Payments of Interest . . . . . . . . . . . . . . . . . . 15
SECTION 2.5 Registrar and Paying Agent; Agents Generally . . . . . . 16
SECTION 2.6 Paying Agent to Hold Money in Trust. . . . . . . . . . . 17
SECTION 2.7 Transfer and Exchange. . . . . . . . . . . . . . . . . . 18
SECTION 2.8 Replacement Securities . . . . . . . . . . . . . . . . . 21
SECTION 2.9 Outstanding Securities . . . . . . . . . . . . . . . . . 22
SECTION 2.10 Temporary Securities . . . . . . . . . . . . . . . . . . 23
SECTION 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.12 CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.13 Defaulted Interest . . . . . . . . . . . . . . . . . . . 24
SECTION 2.14 Series May Include Tranches. . . . . . . . . . . . . . . 24
ARTICLE 3
REDEMPTION
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Note: The Table of Contents shall not for any purposes be deemed to be a
part of the Indenture.
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SECTION 3.1 Applicability of Article . . . . . . . . . . . . . . . . 25
SECTION 3.2 Notice of Redemption; Partial Redemptions. . . . . . . . 25
SECTION 3.3 Payment of Securities Called for Redemption. . . . . . . 27
SECTION 3.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption . . . . . . . . 28
SECTION 3.5 Mandatory and Optional Sinking Funds . . . . . . . . . . 28
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities. . . . . . . . . . . . . . . . . . 31
SECTION 4.2 Maintenance of Office or Agency. . . . . . . . . . . . . 33
SECTION 4.3 Negative Pledge. . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.4 Certain Sale and Lease-back Transactions . . . . . . . . 35
SECTION 4.5 Certificate to Trustee . . . . . . . . . . . . . . . . . 37
SECTION 4.6 Reports by the Company . . . . . . . . . . . . . . . . . 37
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. . . . . . . . . . . . . . . 37
SECTION 5.2 Successor Substituted. . . . . . . . . . . . . . . . . . 38
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default. . . . . . . . . . . . . . . . . . . . 39
SECTION 6.2 Acceleration . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.3 Other Remedies . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.4 Waiver of Past Defaults. . . . . . . . . . . . . . . . . 43
SECTION 6.5 Control by Majority. . . . . . . . . . . . . . . . . . . 43
SECTION 6.6 Limitation on Suits. . . . . . . . . . . . . . . . . . . 43
SECTION 6.7 Rights of Holders to Receive Payment . . . . . . . . . . 44
SECTION 6.8 Collection Suit by Trustee . . . . . . . . . . . . . . . 44
SECTION 6.9 Trustee May File Proofs of Claim . . . . . . . . . . . . 45
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SECTION 6.10 Application of Proceeds. . . . . . . . . . . . . . . . . 45
SECTION 6.11 Restoration of Rights and Remedies . . . . . . . . . . . 46
SECTION 6.12 Undertaking for Costs. . . . . . . . . . . . . . . . . . 47
SECTION 6.13 Rights and Remedies Cumulative . . . . . . . . . . . . . 47
SECTION 6.14 Delay or Omission Not Waiver . . . . . . . . . . . . . . 47
ARTICLE 7
TRUSTEE
SECTION 7.1 General. . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.2 Certain Rights of Trustee. . . . . . . . . . . . . . . . 48
SECTION 7.3 Individual Rights of Trustee . . . . . . . . . . . . . . 50
SECTION 7.4 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . 50
SECTION 7.5 Notice of Default. . . . . . . . . . . . . . . . . . . . 51
SECTION 7.6 Reports by Trustee to Holders. . . . . . . . . . . . . . 51
SECTION 7.7 Compensation and Indemnity . . . . . . . . . . . . . . . 51
SECTION 7.8 Replacement of Trustee . . . . . . . . . . . . . . . . . 52
SECTION 7.9 Successor Trustee by Merger, Etc.. . . . . . . . . . . . 54
SECTION 7.10 Eligibility. . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.11 Money Held in Trust. . . . . . . . . . . . . . . . . . . 54
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment. . . . . . . . . . 54
SECTION 8.2 Defeasance . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.3 Covenant Defeasance. . . . . . . . . . . . . . . . . . . 57
SECTION 8.4 Application of Trust Money . . . . . . . . . . . . . . . 58
SECTION 8.5 Repayment to Company . . . . . . . . . . . . . . . . . . 58
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders . . . . . . . . . . . . . . . 59
SECTION 9.2 With Consent of Holders. . . . . . . . . . . . . . . . . 60
SECTION 9.3 Revocation and Effect of Consent . . . . . . . . . . . . 61
SECTION 9.4 Notation on or Exchange of Securities. . . . . . . . . . 62
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SECTION 9.5 Trustee to Sign Amendments, Etc. . . . . . . . . . . . . 62
SECTION 9.6 Conformity with Trust Indenture Act. . . . . . . . . . . 63
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939. . . . . . . . . . . . . . . 63
SECTION 10.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 10.3 Certificate and Opinion as to Conditions Precedent . . . 65
SECTION 10.4 Statements Required in Certificate or Opinion. . . . . . 65
SECTION 10.5 Evidence of Ownership. . . . . . . . . . . . . . . . . . 66
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar. . . . . . . 67
SECTION 10.7 Payment Date Other Than a Business Day . . . . . . . . . 67
SECTION 10.8 Governing Law. . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.9 No Adverse Interpretation of Other Agreements. . . . . . 68
SECTION 10.10 Successors . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.11 Duplicate Originals. . . . . . . . . . . . . . . . . . . 68
SECTION 10.12 Separability . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.13 Table of Contents, Headings, Etc.. . . . . . . . . . . . 68
SECTION 10.14 Incorporators, Shareholders, Officers
and Directors of Company Exempt from
Individual Liability . . . . . . . . . . . . . . . . . . 68
SECTION 10.15 Judgment Currency. . . . . . . . . . . . . . . . . . . . 69
ARTICLE 11
GUARANTEE
SECTION 11.1 Guarantee. . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 11.2 Execution and Delivery of Guarantee. . . . . . . . . . . 71
SECTION 11.3 Release of Guarantor . . . . . . . . . . . . . . . . . . 71
SECTION 11.4 When Guarantor May Merge, etc. . . . . . . . . . . . . . 73
SIGNATURES
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INDENTURE, dated as of ____________, 1996, among PROMUS HOTELS, INC.,
a Delaware corporation, as the Company, PROMUS HOTEL CORPORATION, a Delaware
corporation, as the Guarantor, and SOUTHTRUST BANK OF ALABAMA, NATIONAL
ASSOCIATION, a national banking association, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time
of its debentures, notes or other evidences of indebtedness to be issued in one
or more series (the "Securities") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture
and to provide, among other things, for the authentication, delivery and
administration thereof, the Company has duly authorized the execution and
delivery of this Indenture;
WHEREAS, the Guarantor has duly authorized its guarantee (the
"Guarantee") of all of the Company's obligations under the Securities, and to
provide therefor, the Guarantor has duly authorized the execution and delivery
of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Company, the Guarantor and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities or of any and all series thereof and
of the coupons, if any, appertaining thereto as follows:
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Attributable Debt" means, when used in connection with a sale and
lease-back transaction referred to in Section 4.4, on any date as of which the
amount thereof is to be determined, the product of (a) the net proceeds from
such sale and lease-back transaction multiplied by (b) a fraction, the numerator
of which is the number of full years of the term of the lease relating to the
property involved in such
sale and lease-back transaction (without regard to any options to renew or
extend such term) remaining on the date of the making of such computation and
the denominator of which is the number of full years of the term of such lease
measured from the first day of such term.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition) and in the case of London, will, if practicable, be the Financial Times
(London Edition) and published in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in The City of New York or London,
as applicable. If it shall be impractical in the opinion of the Trustee to make
any publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
"Board Resolution" means one or more resolutions of the board of
directors of the Company or the Guarantor, as the case maybe, or any authorized
committee thereof, certified by the secretary or an assistant secretary to have
been duly adopted and to be in full force and effect on the date of
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close in The City of New York or in the city
in which the Corporate Trust Office is located, with respect to any Security the
interest on which is based on the offered quotations in the interbank Eurodollar
market for dollar deposits in London, or with respect to Securities denominated
in a specified currency other than United States dollars, in the principal
financial center of the country of the specified currency.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or equity, including,
without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or
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non-voting) of such Person's common stock, whether now outstanding or issued
after the date of this Indenture, including, without limitation, all series and
classes of such common stock.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article 5 of this Indenture
and thereafter means the successor.
"Consolidated Net Tangible Assets" means, as of any date of
determination, the sum of the amounts that would appear on a consolidated
balance sheet of the Company and its Restricted Subsidiaries for the total
assets (including investments in Joint Ventures) (less accumulated depletion,
depreciation or amortization, allowances for doubtful receivables, other
applicable reserves and other properly deductible items) of the Company and its
Restricted Subsidiaries, determined on a consolidated basis in accordance with
GAAP, after giving effect to purchase accounting and after deducting therefrom,
to the extent included in total assets, in each case as determined on a
consolidated basis in accordance with GAAP (without duplication): (i) the
aggregate amount of liabilities of the Company and its Restricted Subsidiaries
that may properly be classified as current liabilities (including taxes accrued
as estimated); (ii) current indebtedness and current maturities of long-term
indebtedness; (iii) minority interests in the Company's Restricted Subsidiaries
held by Persons other than the Company or a wholly-owned Restricted Subsidiary
of the Company; and (iv) unamortized debt discount and expenses and other
unamortized deferred charges, goodwill, patents, trademarks, service marks,
trade names, copyrights, licenses, organization or developmental expenses and
other intangible items.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at One Office Park Drive, Birmingham, Alabama 35223, Attention:
Corporate Trust Administration.
"Default" means any Event of Default as defined in Section 6.1 and any
event that is, or after notice or passage of time or both would be, an Event of
Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Company pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exempted Debt" means the sum, without duplication, of the following
items outstanding as of the date Exempted Debt is being determined: (i)
indebtedness of the Company and its Restricted Subsidiaries incurred after the
date of this Indenture and secured by liens created or assumed or permitted to
exist pursuant to Section 4.3(b) and (ii) Attributable Debt of the Company and
its Restricted Subsidiaries in respect of all sale and lease-back transactions
with regard to any Principal Property entered into pursuant to Section 4.4(b).
"Funded Debt" means all indebtedness for money borrowed, including
purchase money indebtedness, having a maturity of more than one year from the
date of its creation or having a maturity of less than one year but by its terms
being renewable or extendible, at the option of the obligor in respect thereof,
beyond one year from the date of its creation.
"GAAP" means generally accepted accounting principles in the United
States of America at the date of any computation required or permitted
hereunder.
"Guarantee" shall have the meaning set forth in Section 11.1 hereof.
"Guarantor" means the party named as such in the first paragraph of
this Indenture until a successor replaces it pursuant to Article 11.4 of this
Indenture and thereafter means the successor.
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections 2.1
and 2.3.
"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, time deposit or otherwise.
"Joint Venture" means any partnership, corporation or other entity, in
which up to and including 50% of the partnership interests, outstanding voting
stock or other equity interests is owned, directly or indirectly, by the Company
and/or one or more subsidiaries.
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"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset.
"Officer" means, with respect to the Company or the Guarantor, as the
case may be, the chairman of the board of directors, the president or chief
executive officer, any vice president, the chief financial officer, the
treasurer or any assistant treasurer, or the secretary or any assistant
secretary.
"Officers' Certificate" means a certificate signed in the name of the
Company or the Guarantor, as the case may be, (i) by the chairman of the board
of directors, the president or chief executive officer or a vice president and
(ii) by the chief financial officer, the treasurer or any assistant treasurer,
or the secretary or any assistant secretary, complying with Section 10.4 and
delivered to the Trustee. Each such certificate shall comply with Section 314
of the Trust Indenture Act and include (except as otherwise expressly provided
in this Indenture) the statements provided in Section 10.4.
"Opinion of Counsel" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company or the Guarantor, as the
case may be, satisfactory to the Trustee and complying with Section 10.4. Each
such opinion shall comply with Section 314 of the Trust Indenture Act and
include the statements provided in Section 10.4, if and to the extent required
thereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means 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 pursuant to Section 6.2.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon the issuance of
such Securities.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
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"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"Principal" of a Security means the principal amount of, and, unless
the context indicates otherwise, includes any premium payable on, the Security.
"Principal Property" means land, land improvements, buildings and
associated equipment owned or leased pursuant to a capital lease and used by the
Company or a Restricted Subsidiary primarily in the hotel business which exceeds
2% of Consolidated Net Tangible Assets, but shall not include any such property
financed through the issuance of tax exempt governmental obligations (including,
without limitation, industrial revenue bonds and similar financings).
"Registered Global Security" means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such series
in accordance with Section 2.2, and bearing the legend prescribed in Section
2.2.
"Registered Security" means any Security registered on the Security
Register (as defined in Section 2.5).
"Responsible Officer" means, when used with respect to the Trustee,
any senior trust officer, any vice president, any trust officer, any assistant
trust officer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means any Subsidiary organized and existing
under the laws of the United States of America and the principal business of
which is carried on within the United States of America which owns or is a
lessee pursuant to a capital lease of any Principal Property other than:
(i) each Subsidiary the major part of whose business consists
of finance, banking, credit, leasing, insurance, financial services or
other similar operations, or any combination thereof; and
(ii) each Subsidiary formed or acquired after the date hereof
for the purpose of acquiring the business or assets of another Person
and which does not acquire all or any substantial part of the business
or assets of the Company or any Restricted Subsidiary;
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PROVIDED, HOWEVER, that any Subsidiary may be declared a Restricted Subsidiary
by Board Resolution, effective as of the date such Board Resolution is adopted;
PROVIDED further, that any such declaration may be rescinded by further Board
Resolution, effective as of the date such further Board Resolution is adopted.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article 7 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbbb), as it may be amended from time to
time.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; PROVIDED that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S.
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Government Obligation or the specific payment of interest on or principal of the
U.S. Government Obligation evidenced by such depository receipt.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Yield to Maturity" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series are
issuable from time to time, on a Security of such series, calculated at the time
of issuance of such series in the case of clause (i) or at the time of issuance
of such Security of such series in the case of clause (ii), or, if applicable,
at the most recent redetermination of interest on such series or on such
Security, and calculated in accordance with the constant interest method or such
other accepted financial practice as is specified in the terms of such Security.
SECTION 1.2 OTHER DEFINITIONS. Each of the following terms is
defined in the section set forth opposite such term:
TERM SECTION
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Authenticating Agent 2.2
cash transaction 7.3
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.15
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
record date 2.4
Registrar 2.5
Required Currency 10.15
Security Register 2.5
self-liquidating paper 7.3
sinking fund payment date 3.5
tranche 2.14
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture.
The following terms used in this Indenture that are defined by the Trust
Indenture Act have the following meanings:
"indenture securities" means the Securities;
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"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
have the meanings assigned to them therein.
SECTION 1.4 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, and words in the
plural include the singular;
(iii) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(iv) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should not be
deemed a limitation, and the use of any such pronouns should be construed
to include, where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.1 FORM. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this
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Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law, or with any rules of any securities
exchange or usage, all as may be determined by the officers executing such
Securities as evidenced by their execution of the Securities. Unless otherwise
so established, Unregistered Securities shall have coupons attached.
SECTION 2.2 EXECUTION AND AUTHENTICATION. Two Officers shall
execute the Securities (other than coupons) for the Company by facsimile or
manual signature in the name and on behalf of the Company. Two Officers shall
execute the Guarantees for the Guarantor by facsimile or manual signature in the
name and on behalf of the Guarantor. The seal of the Company, if any, shall be
reproduced on the Securities. If an Officer whose signature is on a Security no
longer holds that office at the time the Security is authenticated, the Security
shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "AUTHENTICATING AGENT") to authenticate Securities
(other than coupons). The Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent.
A Security (other than coupons) shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series having attached
thereto appropriate coupons, if any, executed by the Company and the Guarantor
to the Trustee for authentication together with the applicable documents
referred to below in this Section, and the Trustee shall thereupon authenticate
and deliver such Securities to or upon the written order of the Company. In
authenticating any Securities of a series, the Trustee shall be entitled to
receive prior to the first authentication of any Securities of such series, and
(subject to Article 7) shall be fully protected in relying upon, unless and
until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental indenture
referred to in Sections 2.1 and 2.3 by or pursuant to which the forms and
terms of the Securities of that series were established;
(2) an Officers' Certificate setting forth the form or forms and
terms of the Securities, stating that the form or forms and terms of the
Securities of such series have been, or will be when established in
10
accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture; and
(3) at the option of the Company, either an Opinion of Counsel,
or a letter addressed to the Trustee permitting it to rely on an
Opinion of Counsel, substantially to the effect that the Securities
have been duly authorized and, if executed and authenticated in
accordance with the provisions of the Indenture and delivered to and
duly paid for by the purchasers thereof on the date of such opinion,
would be entitled to the benefits of the Indenture and would be valid
and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to
bankruptcy, insolvency, reorganization, receivership, moratorium and
other similar laws affecting creditors' rights generally, general
principles of equity, and such other matters as shall be specified
therein.
If the Company shall establish pursuant to Section 2.3 that the
Securities of a series or a portion thereof are to be issued in the form of one
or more Registered Global Securities, then the Company and the Guarantor shall
execute and the Trustee shall authenticate and deliver one or more Registered
Global Securities that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Securities of such series
issued in such form and not yet canceled, (ii) shall be registered in the name
of the Depositary for such Registered Global Security or Securities or the
nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or its custodian or pursuant to such Depositary's instructions and
(iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the 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."
SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such
series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Company. There shall be established in or pursuant
to Board Resolution or one or more indentures supplemental hereto, prior to the
initial issuance of Securities of any series, subject to the last sentence of
this Section 2.3,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
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(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
and any limitation on the ability of the Company to increase such aggregate
principal amount after the initial issuance of the Securities of that
series (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, or upon redemption of,
other Securities of the series pursuant hereto);
(3) the date or dates on which the principal of the Securities of
the series is payable (which date or dates may be fixed or extendible);
(4) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, on which such interest shall
be payable and (in the case of Registered Securities) on which a record
shall be taken for the determination of Holders to whom interest is payable
and/or the method by which such rate or rates or date or dates shall be
determined;
(5) if other than as provided in Section 4.2, the place or places
where the principal of and any interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
exchange, notices, demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served and notice to
Holders may be published;
(6) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund
or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period or periods within which and
any of the terms and conditions upon which Securities of the series shall
be redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
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(10) if other than the coin or currency in which the Securities of
the series are denominated, the coin or currency in which payment of the
principal of or interest on the Securities of the series shall be payable
or if the amount of payments of principal of and/or interest on the
Securities of the series may be determined with reference to an index based
on a coin or currency other than that in which the Securities of the series
are denominated, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency or currencies, including composite currencies, in which payment of
the Principal of and interest on the Securities of the series shall be
payable, and the manner in which any such currencies shall be valued
against other currencies in which any other Securities shall be payable;
(12) whether the Securities of the series or any portion thereof will
be issuable as Registered Securities (and if so, whether such Securities
will be issuable as Registered Global Securities) or Unregistered
Securities (with or without coupons), or any combination of the foregoing,
any restrictions applicable to the offer, sale or delivery of Unregistered
Securities or the payment of interest thereon and, if other than as
provided herein, the terms upon which Unregistered Securities of any series
may be exchanged for Registered Securities of such series and vice versa;
(13) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a person who is
not a U.S. person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Company will have the option
to redeem such Securities rather than pay such additional amounts;
(14) if the Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(15) any trustees, depositaries, authenticating or paying agents,
transfer agents or the registrar or any other agents with respect to the
Securities of the series;
(16) provisions, if any, for the defeasance of the Securities of the
series (including provisions permitting defeasance of less than all
Securities of the series), which provisions may be in addition to, in
substitution for, or in modification of (or any combination of the
foregoing) the provisions of Article 8;
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(17) if the Securities of the series are issuable in whole or in part
as one or more Registered Global Securities, the identity of the Depositary
for such Registered Global Security or Securities (which Depositary shall,
at the time of its designation as Depositary and at all times while it
serves as Depositary, be a clearing agency registered under the Exchange
Act and any other applicable statute or regulation);
(18) any other events of default or covenants with respect to the
Securities of the series; and
(19) the subordination provisions, if any, relating to such
Securities or the Guarantee;
(20) with respect to any series of senior secured Securities, the
type, amount and other terms of, and provisions relating to, the collateral
to be provided as security, and any deletions, additions or modifications
to this Indenture to permit the issuance of senior secured Securities or
the administration thereof; and
(21) any other terms of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic
Offering and except as may otherwise be provided by or pursuant to the Board
Resolution referred to above or as set forth in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board Resolution or in any such
indenture supplemental hereto and any forms and terms of Securities to be issued
from time to time may be completed and established from time to time prior to
the issuance thereof by procedures described in such Board Resolution or
supplemental indenture.
SECTION 2.4 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF
INTEREST. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, if not so established with respect to Securities
of any series, in denominations of $1,000 and any integral multiple thereof.
The Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the Officers of
the Company executing the same may determine, as evidenced by their execution
thereof.
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Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest and shall be payable on the dates, established as contemplated by
Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date for such series, in which case the
provisions of Section 2.13 shall apply. The term "RECORD DATE" as used with
respect to any interest payment date (except a date for payment of defaulted
interest) for the Securities of any series shall mean the date specified as such
in the terms of the Registered Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established, the
fifteenth day next preceding such interest payment date, whether or not such
record date is a Business Day.
SECTION 2.5 REGISTRAR AND PAYING AGENT; AGENTS GENERALLY. The
Company shall maintain an office or agency where Securities may be presented
for registration, registration of transfer or for exchange (the "REGISTRAR")
and an office or agency where Securities may be presented for payment (the
"PAYING AGENT"). The Company shall cause the Registrar to keep a register of
the Registered Securities and of their registration, transfer and exchange
(the "SECURITY REGISTER"). The Company may have one or more additional
Paying Agents or transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such. The Company may remove any Agent upon written notice to such Agent and
the Trustee; PROVIDED that no such removal shall become effective until (i) the
acceptance of an appointment by a successor Agent to such Agent as evidenced by
an appropriate agency agreement entered into by the Company and such successor
Agent and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as such Agent until the appointment of a successor Agent in
accordance with clause (i) of this proviso. The Company or any affiliate of the
Company may act as Paying Agent or Registrar; PROVIDED that neither the Company
nor an affiliate of the Company shall act as Paying Agent in connection with the
defeasance of the Securities or the discharge of this Indenture under Article 8.
15
The Company initially appoints the Trustee as Registrar, Paying Agent
and Authenticating Agent. If, at any time, the Trustee is not the Registrar,
the Registrar shall make available to the Trustee ten days prior to each
interest payment date and at such other times as the Trustee may reasonably
request the names and addresses of the Holders as they appear in the Security
Register.
SECTION 2.6 PAYING AGENT TO HOLD MONEY IN TRUST. Not later than
10:00 a.m. New York City time on each due date of any Principal or interest on
any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent for
the payment of Principal of and interest on such Securities and shall promptly
notify the Trustee of any default by the Company in making any such payment.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee and account for any funds disbursed, and the Trustee may at any
time during the continuance of any payment default, upon written request to a
Paying Agent, require such Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent
shall have no further liability for the money so paid over to the Trustee. If
the Company or any affiliate of the Company acts as Paying Agent, it will, on or
before each due date of any Principal of or interest on any Securities,
segregate and hold in a separate trust fund for the benefit of the Holders
thereof a sum of money sufficient to pay such Principal or interest so becoming
due until such sum of money shall be paid to such Holders or otherwise disposed
of as provided in this Indenture, and will promptly notify the Trustee in
writing of its action or failure to act as required by this Section.
SECTION 2.7 TRANSFER AND EXCHANGE. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such series
and tenor having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance
with Section 2.5 and upon payment, if the Company shall so require, of the
charges hereinafter provided. If the Securities of any series are issued in
both registered and unregistered form, except as otherwise established pursuant
to Section 2.3, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon
16
surrender of such Unregistered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with Section
4.2, with, in the case of Unregistered Securities that have coupons attached,
all unmatured coupons and all matured coupons in default thereto appertaining,
and upon payment, if the Company shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities of
any series, maturity date, interest rate and original issue date are issued in
more than one authorized denomination, except as otherwise established pursuant
to Section 2.3, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered Securities to be
exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 4.2, with, in the case of Unregistered Securities
that have coupons attached, all unmatured coupons and all matured coupons in
default thereto appertaining, and upon payment, if the Company shall so require,
of the charges hereinafter provided. Registered Securities of any series may
not be exchanged for Unregistered Securities of such series. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
The Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any exchange
or registration of transfer of Securities. No service charge shall be made for
any such transaction.
Notwithstanding any other provision of this Section 2.7, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under
17
applicable law for such Registered Global Securities 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, upon receipt
of the Company's order for the authentication and delivery of definitive
Registered Securities of such series and tenor, will authenticate and deliver
Registered Securities of such series and tenor, in any authorized denominations,
in an aggregate principal amount equal to the principal amount of such
Registered Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion determine that
any Registered Global Securities of any series shall no longer be maintained in
global form. In such event the Company and the Guarantor will execute, and the
Trustee, upon receipt of the Company's order for the authentication and delivery
of definitive Registered Securities of such series and tenor, will authenticate
and deliver, Registered Securities of such series and tenor in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
such Registered Global Securities, in exchange for such Registered Global
Securities.
Any time the Registered Securities of any series are not in the form
of Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.2 and the Trustee
agrees to hold such Registered Securities in safekeeping until authenticated and
delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.3 with respect to
any Registered Global Security, the Depositary for such Registered Global
Security may surrender such Registered Global Security in exchange in whole or
in part for Registered Securities of the same series and tenor in definitive
registered form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
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Registered Securities issued in exchange for a Registered Global
Security pursuant to this Section 2.7 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the Trustee.
The Trustee or such agent shall deliver such Securities to or as directed by the
Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Guarantor, the Trustee or
any agent of the Company, the Guarantor or the Trustee shall be required to
exchange any Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the Company or the
Guarantor (such as, for example, the inability of the Company or the Guarantor
to deduct from its income, as computed for Federal income tax purposes, the
interest payable on the Unregistered Securities) under then applicable United
States Federal income tax laws. The Trustee and any such agent shall be
entitled to rely on an Officers' Certificate or an Opinion of Counsel in
determining such result.
Neither the Registrar nor the Company shall be required (i) to issue,
authenticate, register the transfer of or exchange Securities of any series for
a period of 15 days before a selection of such Securities to be redeemed or (ii)
to register the transfer of or exchange any Security selected for redemption in
whole or in part.
SECTION 2.8 REPLACEMENT SECURITIES. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims that
its Security of any series has been lost, destroyed or wrongfully taken, the
Company and the Guarantor shall, subject to the further provisions of this
Section 2.8, issue and the Trustee shall authenticate a replacement Security of
such series and tenor and principal amount bearing a number not
contemporaneously outstanding. The Company may charge such Holder for any tax
or other governmental charge that may be imposed as a result of or in connection
with replacing a Security and for its expenses and the expenses of the Trustee
(including without limitation attorneys' fees and expenses) in replacing a
Security. In case any such mutilated, defaced, lost, destroyed or wrongfully
taken Security has become or is about to become due and payable, the Company in
its discretion may pay such Security instead of issuing a new Security in
replacement thereof. If required by the Trustee or the Company, (i) an
indemnity bond must be furnished that is sufficient in the judgment of both the
Trustee and the Company to protect the Company, the Trustee and any Agent from
any loss that any
19
of them may suffer if a Security is replaced or paid as provided in this Section
2.8 and (ii) in the case of a lost, destroyed or wrongfully taken Security,
evidence must be furnished to the satisfaction of both the Trustee and the
Company of the loss, destruction or wrongful taking of such Security.
Notwithstanding the foregoing, the Company and the Trustee shall have no
obligation to replace or pay a Security pursuant to this Section 2.8 if either
the Company or the Trustee has notice that such Security has been acquired by a
bona fide purchaser.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of this
Section are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
SECTION 2.9 OUTSTANDING SECURITIES. Securities outstanding at any
time are all Securities that have been authenticated and delivered by the
Trustee except for those canceled by it, those delivered to it for cancellation
and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of the
Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to be
redeemed or repurchased on that date, then on and after that date such
Securities cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the Company or one
of its affiliates holds such Security, PROVIDED, HOWEVER, that, in determining
whether the Holders of the requisite principal amount of the outstanding
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the Company or any affiliate
of the Company shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities as to which a Responsible Officer of the Trustee has received written
notice to be so owned shall be so disregarded. Any Securities so owned which
are pledged by the Company, or by any affiliate of the Company, as security for
loans or other obligations, otherwise than to another such affiliate of the
Company, shall be deemed to be outstanding, if the pledgee is entitled pursuant
to the terms of its pledge agreement and is free to exercise in its or his
20
discretion the right to vote such securities, uncontrolled by the Company or by
any such affiliate.
SECTION 2.10 TEMPORARY SECURITIES. Until definitive Securities of
any series are ready for delivery, the Company and the Guarantor may prepare and
the Trustee shall authenticate temporary Securities of such series. Temporary
Securities of any series shall be substantially in the form of definitive
Securities of such series but may have insertions, substitutions, omissions and
other variations determined to be appropriate by the Officers executing the
temporary Securities, as evidenced by their execution of such temporary
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 of any series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series and tenor upon surrender of such temporary Securities
at the office or agency of the Company designated for such purpose pursuant to
Section 4.2, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of such series and tenor and authorized
denominations. Until so exchanged, the temporary Securities of any series
shall be entitled to the same benefits under this Indenture as definitive
Securities of such series.
SECTION 2.11 CANCELLATION. The Company at any time may deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold.
The Registrar, any transfer agent and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee shall cancel and destroy all Securities surrendered for transfer,
exchange, payment or cancellation and shall deliver a certificate of destruction
to the Company. The Company may not issue new Securities to replace Securities
it has paid in full or delivered to the Trustee for cancellation.
SECTION 2.12 CUSIP NUMBERS. The Company in issuing the Securities
may use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee
shall use CUSIP numbers or CINS numbers, as the case may be, in notices of
redemption or exchange as a convenience to Holders and no representation shall
be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange.
SECTION 2.13 DEFAULTED INTEREST. If the Company defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest
21
plus (to the extent lawful) any interest payable on the defaulted interest (as
may be specified in the terms thereof, established pursuant to Section 2.3) to
the Persons who are Holders on a subsequent special record date, which shall
mean the 15th day next preceding the date fixed by the Company for the payment
of defaulted interest, whether or not such day is a Business Day. At least 15
days before such special record date, the Company shall mail to each Holder and
to the Trustee a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
SECTION 2.14 SERIES MAY INCLUDE TRANCHES. A series of Securities
may include one or more tranches (each a "TRANCHE") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to Sections
2.2 (other than the fourth paragraph thereof) through 2.4, 2.7, 2.8, 2.10, 3.1
through 3.5, 4.2, 6.1 through 6.14, 8.1 through 8.5 and 9.2, if any series of
Securities includes more than one tranche, all provisions of such sections
applicable to any series of Securities shall be deemed equally applicable to
each tranche of any series of Securities in the same manner as though originally
designated a series unless otherwise provided with respect to such series or
tranche pursuant to Section 2.3. In particular, and without limiting the scope
of the next preceding sentence, any of the provisions of such sections which
provide for or permit action to be taken with respect to a series of Securities
shall also be deemed to provide for and permit such action to be taken instead
only with respect to Securities of one or more tranches within that series (and
such provisions shall be deemed satisfied thereby), even if no comparable action
is taken with respect to Securities in the remaining tranches of that series.
ARTICLE 3
REDEMPTION
SECTION 3.1 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 3.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Company shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
of Registered Securities of
22
such series at their last addresses as they shall appear upon the Securities
Register. Notice of redemption to the Holders of Unregistered Securities of any
series to be redeemed as a whole or in part who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture
Act, shall be given by mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the date
fixed for redemption, to such Holders at such addresses as were so furnished to
the Trustee (and, in the case of any such notice given by the Company, the
Trustee shall make such information available to the Company for such purpose).
Notice of redemption to all other Holders of Unregistered Securities of any
series to be redeemed as a whole or in part shall be published in an Authorized
Newspaper in The City of New York or with respect to any Security the interest
on which is based on the offered quotations in the interbank Eurodollar market
for dollar deposits in an Authorized Newspaper in London, in each case, once in
each of three successive calendar weeks, the first publication to be not less
than 30 days nor more than 60 days prior to the date fixed for redemption. Any
notice which is mailed or published in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i) the
principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the CUSIP numbers of the Securities to be redeemed, (iii) the
date fixed for redemption, (iv) the redemption price, (v) the place or places of
payment, (vi) that payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with coupons attached thereto, of all
coupons appertaining thereto maturing after the date fixed for redemption, (vii)
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, (viii) that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security of a series is to be redeemed in part only, the
notice of redemption shall state the portion of the principal amount thereof to
be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of such series and
tenor in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be redeemed at
the option 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.
Not later than 10:00 a.m. New York City time on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if
the Company
23
is acting as its own Paying Agent, set aside, segregate and hold in trust as
provided in Section 2.6) an amount of money in immediately available funds
sufficient to redeem on the redemption date all the Securities of such series so
called for redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption. If less than all the outstanding
Securities of a series are to be redeemed, the Company will deliver to the
Trustee at least 15 days prior to the last date on which notice of redemption
may be given to Holders pursuant to the first paragraph of this Section 3.2 (or
such shorter period as shall be acceptable to the Trustee) an Officers'
Certificate (which need not contain the statements required by Section 10.4)
stating the aggregate principal amount of such Securities to be redeemed. In
case of a redemption at the election of the Company prior to the expiration of
any restriction on such redemption, the Company shall deliver to the Trustee,
prior to the giving of any notice of redemption to Holders pursuant to this
Section, an Officers' Certificate stating that such redemption is not prohibited
by such restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 3.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after such
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to such date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured coupons, if any, appertaining thereto shall be void
and, except as provided in Sections 7.11 and 8.4, such Securities shall cease
from and after the date fixed for redemption to be entitled to any benefit under
this Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of
such Securities at a place of payment specified in said notice, together with
all coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with
interest accrued thereon to
24
the date fixed for redemption; PROVIDED that payment of interest becoming due on
or prior to the date fixed for redemption shall be payable in the case of
Securities with coupons attached thereto, to the Holders of the coupons for such
interest upon surrender thereof, and in the case of Registered Securities, to
the Holders of such Registered Securities registered as such on the relevant
record date subject to the terms and provisions of Sections 2.4 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after the
date fixed for redemption, the surrender of such missing coupon or coupons may
be waived by the Company and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security of any series redeemed in part only,
the Company and the Guarantor shall execute and the Trustee shall authenticate
and deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
SECTION 3.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series is herein referred to as a "MANDATORY SINKING FUND PAYMENT", and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "OPTIONAL SINKING FUND
PAYMENT". The date on which a sinking fund payment is to be made is herein
referred to as the "SINKING FUND PAYMENT DATE".
25
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.11, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Company
through any optional sinking fund payment. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, or such shorter period as shall be acceptable to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none
of the specified Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Company intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which
the Company intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Company to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.11 to the Trustee with such
Officers' Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers' Certificate shall be irrevocable and upon its receipt
by the Trustee the Company shall become unconditionally obligated to make all
the cash payments or delivery of securities therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the Company,
on or before any such sixtieth day, to deliver such Officer's Certificate and
Securities specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Company (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any
26
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or a lesser sum if the Company shall so request with respect to the
Securities of any series), such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such series at the
sinking fund redemption price thereof together with accrued interest thereon to
the date fixed for redemption. If such amount shall be $50,000 (or such lesser
sum) or less and the Company makes no such request then it shall be carried over
until a sum in excess of $50,000 (or such lesser sum) is available. The Trustee
shall select, in the manner provided in Section 3.2, for redemption on such
sinking fund payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be, and shall inform the Company of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for redemption under
this Section if they are identified by registration and certificate number in an
Officers' Certificate delivered to the Trustee at least 60 days prior to the
sinking fund payment date as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such Officers' Certificate as directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company.
The Trustee, in the name and at the expense of the Company (or the Company, if
it shall so request the Trustee in writing) shall cause notice of redemption of
the Securities of such series to be given in substantially the manner provided
in Section 3.2 (and with the effect provided in Section 3.3) for the redemption
of Securities of such series in part at the option of the Company. The amount
of any sinking fund payments not so applied or allocated to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
for such series and, together with such payment, shall be applied in accordance
with the provisions of this Section. Any and all sinking fund moneys held on
the stated maturity date of the Securities of any particular series (or earlier,
if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series shall be applied, together
with other moneys, if necessary, sufficient for the purpose, to the payment of
the Principal of, and interest on, the Securities of such series at maturity.
Not later than 10:00 a.m. New York City time on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for redemption
on Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a
Default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as
27
aforesaid, any moneys in the sinking fund for such series at the time when any
such Default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such Default or Event of
Default, be deemed to have been collected under Article 6 and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 6.4 or the Default cured on or before the sixtieth
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities with
coupons attached (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature. The interest on any temporary Unregistered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be paid, as to the installments of interest evidenced by
coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation of
such Unregistered Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to the Holders thereof and at the option of the Company may be paid by mailing
checks for such interest payable to or upon the written order of such Holders at
their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of
any series to the contrary, if the Company and a Holder of any Registered
Security so agree, payments of interest on, and any portion of the Principal of,
such Holder's Registered Security (other than interest payable at maturity or on
any redemption or repayment date or the final payment of Principal on such
Security) shall be made by the Paying Agent, upon receipt from the Company of
immediately available funds by 11:00 A.M., New York City time (or such other
time as may be agreed to between the Company and the Paying Agent), directly to
the Holder of such Security (by Federal funds wire transfer or otherwise) if the
Holder has delivered written instructions to the Trustee 15 days prior to such
payment date requesting that such payment will be so made and designating the
bank account to which such payments shall be so made and in the case of payments
of Principal surrenders the same to the Trustee in exchange for
28
a Security or Securities aggregating the same principal amount as the unredeemed
principal amount of the Securities surrendered. The Trustee shall be entitled
to rely on the last instruction delivered by the Holder pursuant to this Section
4.1 unless a new instruction is delivered 15 days prior to a payment date. The
Company will indemnify and hold each of the Trustee and any Paying Agent
harmless against any loss, liability or expense (including attorneys' fees)
resulting from any act or omission to act on the part of the Company or any such
Holder in connection with any such agreement or from making any payment in
accordance with any such agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company hereby initially designates
the Corporate Trust Office of the Trustee as such office or agency of the
Company. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 10.2.
The Company will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of any series are listed) where the Unregistered Securities, if any,
of each series and coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless, pursuant to
applicable United States laws and regulations then in effect, such payment can
be made without adverse tax consequences to the Company. Notwithstanding the
foregoing, if full payment in United States Dollars ("DOLLARS") at each agency
maintained by the Company outside the United States for payment on such
Unregistered Securities or coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions,
payments in Dollars of Unregistered Securities of any series and coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Company.
29
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 4.3 NEGATIVE PLEDGE. The following covenant applies to
Securities of any series that are designated as senior unsecured debt
Securities: (a) The Company will not, and will not permit any Restricted
Subsidiary to, create or incur any Lien on any shares of stock, indebtedness
or other obligations of a Restricted Subsidiary or any Principal Property of
the Company or a Restricted Subsidiary, whether such shares of stock,
indebtedness or other obligations of a Restricted Subsidiary or Principal
Property are owned at the date of this Indenture or hereafter acquired,
unless the Company secures or causes such Restricted Subsidiary to secure the
outstanding Securities equally and ratably with all indebtedness secured by
such Lien, so long as such indebtedness shall be so secured; PROVIDED,
however, that this covenant shall not apply in the case of: (i) the creation
of any Lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property hereafter acquired (including
acquisitions by way of merger or consolidation) by the Company or a
Restricted Subsidiary contemporaneously with such acquisition, or within 180
days thereafter, to secure or provide for the payment or financing of any
part of the purchase price thereof, or the assumption of any Lien upon any
shares of stock, indebtedness or other obligations of a Subsidiary or any
Principal Property hereafter acquired existing at the time of such
acquisition, or the acquisition of any shares of stock, indebtedness or other
obligations of a Subsidiary or any Principal Property subject to any Lien
without the assumption thereof; (ii) any Lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal Property
existing at the date of this Indenture; (iii) any Lien on any shares of
stock, indebtedness or other obligations of a Subsidiary or any Principal
Property in favor of the Company or any Restricted Subsidiary; (iv) any Lien
on any Principal Property being constructed or improved securing loans to
finance such construction or improvements; (v) any Lien on shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal Property
incurred in connection with the issuance of tax-exempt governmental
obligations (including, without limitation, industrial revenue bonds and
similar financings); (vi) any mechanics', materialmen's, carriers' or other
similar Liens arising in the ordinary course of business with respect to
obligations which are not yet due or that are being contested in good faith,
(vii) any Lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property for taxes, assessments or governmental
charges or levies not yet delinquent, or already delinquent but the validity
of which is being contested in good faith, (viii) any Lien on any shares of
stock, indebtedness or other obligations of a Subsidiary or
30
any Principal Property arising in connection with legal proceedings being
contested in good faith, including any judgment Lien so long as execution
thereon is stayed, (ix) any landlord's Lien on fixtures located on premises
leased by the Company or a Restricted Subsidiary in the ordinary course of
business, and tenants' rights under leases, easements and similar Liens not
materially impairing the use or value of the property involved, (x) any Lien
arising by reason of deposits necessary to qualify the Company or any
Restricted Subsidiary to conduct business, maintain self-insurance, or obtain
the benefit of, or comply with, any law, (xi) Liens resulting from the
deposit of funds or evidences of indebtedness in trust for the purpose of
defeasing indebtedness of the Company or of any of its Subsidiaries, and
(xii) Liens existing on property or indebtedness of, or an equity interest
in, any corporation, partnership or any other entity at the time such
corporation, partnership or other entity becomes a Restricted Subsidiary;
(xiii) Liens on the stock, partnership or other equity interest of the
Company or any Subsidiary in any Joint Venture or any Subsidiary which owns
an equity interest in such Joint Venture, to secure Debt, provided the amount
of such Debt is contributed and/or advanced solely to such Joint Venture; and
(xiv) any renewal of or substitution for any Lien permitted by any of the
preceding clauses (i) through (xiii), provided, in the case of a Lien
permitted under clause (i), (ii) or (iv), the principal amount of
indebtedness secured thereby does not exceed (x) the greater of (i) the
principal amount secured thereby at the time of such renewal or substitution,
and (ii) 80% of the fair market value (in the opinion of the Company's Board
of Directors) of the properties subject to such renewal or substitution plus
(y) any costs incurred in connection with such renewal or substitution.
(b) Notwithstanding the provisions of paragraph (a) of this Section,
the Company or any Restricted Subsidiary may create or assume Liens in addition
to those permitted by paragraph (a) of this Section, and renew, extend or
replace such liens, PROVIDED that at the time of such creation, assumption,
renewal, extension or replacement, and after giving effect thereto, Exempted
Debt does not exceed the greater of (x) $50 million, or (y) 15% of Consolidated
Net Tangible Assets.
SECTION 4.4 CERTAIN SALE AND LEASE-BACK TRANSACTIONS. The following
covenant applies to Securities of any series that are designated as senior
unsecured debt Securities: (a) The Company will not, and will not permit any
Restricted Subsidiary to, sell or transfer, directly or indirectly, except to
the Company or a Restricted Subsidiary, any Principal Property as an entirety,
or any substantial portion thereof, with the intention of taking back a lease of
such property, except a lease for a period of three years or less at the end of
which it is intended that the use of such property by the lessee will be
discontinued; PROVIDED that, notwithstanding the foregoing, the Company or any
Restricted Subsidiary may sell any such Principal Property and lease it back for
a longer period (i) if the Company or such Restricted Subsidiary would be
entitled, pursuant to the provisions of Section 4.3(a), to create a Lien on the
property to be leased securing Funded Debt in an amount equal to the
Attributable Debt with respect to such sale and lease-back transaction without
equally
31
and ratably securing the outstanding Securities or (ii) if (A) the Company
promptly informs the Trustee of such transaction and (B) the Company causes an
amount equal to the fair value (as determined by Board Resolution of the
Company) of such property to be applied (1) to the purchase of other property
that will constitute Principal Property having a fair value at least equal to
the fair value of the property sold or (2) to the retirement, within 240 days
after receipt of such proceeds, of Funded Debt incurred or assumed by the
Company or a Restricted Subsidiary (including the Securities); PROVIDED further
that, in lieu of applying all of or any part of such net proceeds to such
retirement, the Company may, within 240 days after such sale, deliver or cause
to be delivered to the applicable trustee for cancellation either debentures or
notes evidencing Funded Debt of the Company (which may include the Securities)
or of a Restricted Subsidiary previously authenticated and delivered by the
applicable trustee, and not theretofore tendered for sinking fund purposes or
called for a sinking fund or otherwise applied as a credit against an obligation
to redeem or retire such notes or debentures, and an Officers' Certificate
(which shall be delivered to the Trustee and which need not contain the
statements prescribed by Section 10.4) stating that the Company elects to
deliver or cause to be delivered such debentures or notes in lieu of retiring
Funded Debt as hereinabove provided. If the Company shall so deliver debentures
or notes to the applicable trustee and the Company shall duly deliver such
Officers' Certificate, the amount of cash which the Company shall be required to
apply to the retirement of Funded Debt under this Section 4.4(a) shall be
reduced by an amount equal to the aggregate of the then applicable optional
redemption prices (not including any optional sinking fund redemption prices) of
such debentures or notes, or, if there are no such redemption prices, the
principal amount of such debentures or notes; PROVIDED, that in the case of
debentures or notes which provide for an amount less than the principal amount
thereof to be due and payable upon a declaration of the maturity thereof, such
amount of cash shall be reduced by the amount of principal of such debentures or
notes that would be due and payable as of the date of such application upon a
declaration of acceleration of the maturity thereof pursuant to the terms of the
indenture pursuant to which such debentures or notes were issued.
(b) Notwithstanding the provisions of paragraph (a) of this Section
4.4, the Company or any Restricted Subsidiary may enter into sale and lease-back
transactions in addition to those permitted by paragraph (a) of this Section 4.4
without any obligation to retire any outstanding Securities or other Funded
Debt, PROVIDED that at the time of entering into such sale and lease-back
transactions and after giving effect thereto, Exempted Debt does not exceed the
greater of (x) $50 million or (y) 15% of Consolidated Net Tangible Assets.
SECTION 4.5 CERTIFICATE TO TRUSTEE. The Company and the Guarantor
will furnish to the Trustee annually, on or before a date not more than four
months after the end of its fiscal year (which, on the date hereof, is a
calendar year), a brief certificate (which need not contain the statements
required by Section 10.4) from its principal executive, financial or accounting
officer as to his or her knowledge of the
32
compliance of the Company and the Guarantor with all conditions and covenants
under this Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture) which
certificate shall comply with the requirements of the Trust Indenture Act.
SECTION 4.6 REPORTS BY THE COMPANY. The Company and the Guarantor
covenant to file with the Trustee, within 15 days after either the Company or
the Guarantor is required to file the same with the Commission, copies of the
annual reports and of the information, documents, and other reports which the
Company and the Guarantor may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 THE COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS. The Company shall not consolidate with or merge with or into any other
Person or, directly or indirectly, sell, lease, or convey all or substantially
all of its assets (computed on a consolidated basis), whether in a single
transaction or a series of related transactions, to another Person, unless:
(1) (A) the Company shall be the continuing corporation in the case
of a merger or (B) the resulting, surviving, or transferee entity (each
such Person, or the Company in the case of clause (A), a "Surviving
Entity") shall be a corporation or partnership organized and validly
existing under the laws of the United States of America, any State thereof
or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered by the Surviving Entity to the
Trustee, in form satisfactory to the Trustee, all of the obligations of the
Company pursuant hereto and pursuant to the Securities;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event or condition which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, conveyance or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture complies with this Article 5 and that all conditions
precedent herein provided for relating to such transaction have been
satisfied.
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SECTION 5.2 SUCCESSOR SUBSTITUTED FOR THE COMPANY. Upon any
consolidation of the Company with, or merger of the Company into, any other
Person or any sale, lease or conveyance of all or substantially all of the
assets of the Company in accordance with Section 5.1, the Surviving Entity shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein and thereafter and all the
obligations of the Company hereunder and under the Securities shall terminate.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. An "EVENT OF DEFAULT" shall occur
with respect to the Securities of any series if:
(a) the Company defaults in the payment of the Principal of any
Security of such series when the same becomes due and payable at maturity,
upon acceleration, redemption or mandatory repurchase, including as a
sinking fund installment, or otherwise;
(b) the Company defaults in the payment of interest on any Security
of such series when the same becomes due and payable, and such default
continues for a period of 30 days;
(c) (i) default by the Company or any Restricted Subsidiary in the
payment when due at maturity of any Funded Debt (other than Funded Debt
that is non-recourse to the Company and its Restricted Subsidiaries) in
excess of the greater of $15,000,000 or 5% of Consolidated Net Tangible
Assets, whether such Funded Debt is outstanding at the date of this
Indenture or is hereafter outstanding, and the continuation of such default
for the greater of any period of grace applicable thereto or ten days from
the date of such default and the holder thereof shall have taken
affirmative action to enforce the payment thereof, or (ii) an event of
default, as defined in any indenture, agreement or instrument evidencing or
under which the Company and/or any Restricted Subsidiary has at the date of
this Indenture or shall thereafter have outstanding at least the greater of
$15,000,000 or 5% of Consolidated Net Tangible Assets aggregate principal
amount of Funded Debt, shall happen and be continuing and such Funded Debt
shall have been accelerated so that the same shall be or become due and
payable prior to the date on which the same would otherwise have become due
and payable, and such acceleration shall not be rescinded or annulled or
such indebtedness shall not be discharged, within ten days;
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(d) the Company or the Guarantor defaults in the performance of or
breaches any other covenant or agreement of the Company or the Guarantor in
this Indenture with respect to any Security of such series or in the
Securities of such series and such default or breach continues for a period
of 30 consecutive days after written notice to the Company or the Guarantor
by the Trustee or to the Company, the Guarantor and the Trustee by the
Holders of 25% or more in aggregate principal amount of the Securities of
all series affected thereby;
(e) an involuntary case or other proceeding shall be commenced
against the Company or any Restricted Subsidiary with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial
part of its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Company or any Restricted Subsidiary
under the federal bankruptcy laws as now or hereafter in effect;
(f) the Company or any Restricted Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Restricted Subsidiary or for all or substantially all of the property and
assets of the Company or any Restricted Subsidiary or (C) effects any
general assignment for the benefit of creditors; or
(g) any other Event of Default established pursuant to Section 2.3
with respect to the Securities of such series occurs.
SECTION 6.2 ACCELERATION. (a) If an Event of Default described in
clauses (a) or (b) of Section 6.1 with respect to the Securities of any series
then outstanding occurs and is continuing, then, and in each and every such
case, except for any series of Securities the principal of which 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 any such affected
series then outstanding hereunder (each such series treated as a separate class)
by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of any
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series established
pursuant to Section 2.3) of all Securities of such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
35
(b) If an Event of Default described in clauses (c), (d) or (g) of
Section 6.1 with respect to the Securities of one or more but not all series
then outstanding, or with respect to the Securities of all series then
outstanding, occurs and is continuing, then, and in each and every such case,
except for any series of Securities the principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, the amount thereof accelerable under this
Section) of the Securities of all such affected series then outstanding
hereunder (treated as a single class) by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the entire principal
(or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.3) of all Securities of
all such affected series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(c) If an Event of Default described in clause (d) or (e) of Section
6.1 occurs and is continuing, then the principal amount (or, if any Securities
are Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to Section 2.3) of all the
Securities then outstanding and interest accrued thereon, if any, shall be and
become immediately due and payable, without any notice or other action by any
Holder or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof established pursuant to Section 2.3) of the Securities of any
series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of each such series (or
of all the Securities, as the case may be) and the principal of any and all
Securities of each such series (or of all the Securities, as the case may be)
which shall have become due otherwise than by acceleration (with interest upon
such principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of each such series to the date
of such payment or deposit) and such amount as shall be sufficient to cover all
amounts owing the Trustee under Section 7.7, and if any and all Events of
Default under the Indenture, other than the non-payment of the principal of
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein, then and in every such case the
Holders of a majority in aggregate principal
36
amount of all the then outstanding Securities of all such series that have been
accelerated (voting as a single class), by written notice to the Company and to
the Trustee, may waive all defaults with respect to all such series (or with
respect to all the Securities, as the case may be) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 6.3 OTHER REMEDIES. If a payment default or an Event of
Default with respect to the Securities of any series occurs and is continuing,
the Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
SECTION 6.4 WAIVER OF PAST DEFAULTS. Subject to Sections 6.2, 6.7
and 9.2, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the principal
as is then accelerable under Section 6.2) of the outstanding Securities of all
series affected (voting as a single class), by notice to the Trustee, may waive,
on behalf of the Holders of all the Securities of such series, an existing
Default or Event of Default with respect to the Securities of such series and
its consequences, except a Default in the payment of Principal of or interest on
any Security as specified in clauses (a) or (b) of Section 6.1 or in respect of
a covenant or provision of this Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
with respect to the Securities of such series 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 Event of Default or impair
any right consequent thereto.
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SECTION 6.5 CONTROL BY MAJORITY. Subject to Sections 7.1 and
7.2(v), the Holders of at least a majority in aggregate principal amount (or, if
any Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class) may 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 by this Indenture; PROVIDED, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and PROVIDED FURTHER, that
the Trustee may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Securities pursuant to this
Section 6.5.
SECTION 6.6 LIMITATION ON SUITS. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to this
Indenture or the Securities of such series, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written notice
of a continuing Event of Default with respect to the Securities of such
series;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected 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;
(iii) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of all such
affected series have not given the Trustee a direction that is inconsistent
with such written request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security to
receive
38
payment of Principal of or interest, if any, on such Holder's Security on or
after the respective due dates expressed on such Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE. If an Event of Default with
respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 6.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount (or such portion thereof as specified
in the terms established pursuant to Section 2.3 of Original Issue Discount
Securities) of Principal of, and accrued interest remaining unpaid on, together
with interest on overdue Principal of, and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest on, the
Securities of such series, in each case at the rate or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such Securities, and
such further amount as shall be sufficient to cover all amounts owing the
Trustee under Section 7.7.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM. In the 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 may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for amounts due the Trustee under Section 7.7) and the Holders allowed in
any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
under Section 7.7. Nothing herein contained shall be deemed to empower the
Trustee to authorize or consent to, or accept or adopt on behalf of any Holder,
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 APPLICATION OF PROCEEDS. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of Principal
or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of
39
which moneys have been collected and noting thereon the payment, or issuing
Securities of such series and tenor in reduced principal amounts in exchange for
the presented Securities of such series and tenor if only partially paid, or
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.7 applicable to the Securities of such series in respect of
which moneys have been collected;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for Principal and interest,
with interest upon the overdue Principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such Principal and interest or Yield to Maturity,
without preference or priority of Principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over Principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to
the aggregate of such Principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Company or
any other person lawfully entitled thereto.
SECTION 6.11 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then,
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored to their former positions
hereunder and thereafter all
40
rights and remedies of the Company, Trustee and the Holders shall continue as
though no such proceeding had been instituted.
SECTION 6.12 UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, in either case in respect to
the Securities of any series, a court may require any party litigant in such
suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may assess reasonable costs, including reasonable attorneys'
fees, against any party litigant (other than the Trustee) in the suit having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.12 does not apply to a suit by a Holder pursuant to
Section 6.7 or a suit by Holders of more than 10% in principal amount of the
outstanding Securities of such series.
SECTION 6.13 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.8, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.14 DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder 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 6 or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
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ARTICLE 7
TRUSTEE
SECTION 7.1 GENERAL. The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, 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, unless it receives indemnity satisfactory to it
against any loss, liability or expense. 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 Article 7.
SECTION 7.2 CERTAIN RIGHTS OF TRUSTEE. Subject to Trust Indenture
Act Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, Officers'
Certificate, Opinion of Counsel (or both), statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper person or
persons. The Trustee need not investigate any fact or matter stated in the
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and/or an Opinion of Counsel, which shall conform
to Section 10.4. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or opinion.
Subject to Sections 7.1 and 7.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered
to the Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof;
42
(iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the misconduct or
negligence of any agent or attorney appointed with due care by it
hereunder;
(iv) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any Board Resolution may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses
and liabilities that might be incurred by it in compliance with such
request or direction;
(vi) the Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within its
rights or powers or for any action it takes or omits to take in accordance
with the direction of the Holders in accordance with Section 6.5 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;
(vii) 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; and
(viii) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall
not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, Officers' Certificate, Opinion of Counsel,
Board Resolution, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine, during
normal business hours and upon prior written notice, the books, records
and premises of the Company, personally or by agent or attorney.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would
43
have if it were not the Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to Trust Indenture Act Sections 310(b) and 311.
For purposes of Trust Indenture Act Section 311(b)(4) and (6), the following
terms shall mean:
(a) "CASH TRANSACTION" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "SELF-LIQUIDATING PAPER" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
SECTION 7.4 TRUSTEE'S DISCLAIMER. The recitals contained herein and
in the Securities (except the Trustee's certificate of authentication) shall be
taken as statements of the Company and not of the Trustee and the Trustee
assumes no responsibility for the correctness of the same. Neither the Trustee
nor any of its agents (i) makes any representation as to the validity or
adequacy of this Indenture or the Securities and (ii) shall be accountable for
the Company's use or application of the proceeds from the Securities.
SECTION 7.5 NOTICE OF DEFAULT. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a Responsible Officer with the Corporate Trust
Department of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if any
Unregistered Securities of such series are then outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London and (ii) to all Holders of Securities of such series in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, unless such
Default shall have been cured or waived before the mailing or publication of
such notice; PROVIDED, HOWEVER, that, except in the case of a Default in the
payment of the Principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
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SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after
each May 15, beginning with May 15, 1997, the Trustee shall mail to each Holder
as and to the extent provided in Trust Indenture Act Section 313(c) a brief
report dated as of such May 15, if required by Trust Indenture Act Section
313(a).
SECTION 7.7 COMPENSATION AND INDEMNITY. The Company shall pay to
the Trustee such compensation as shall be agreed upon in writing from time to
time for its services. The compensation of the Trustee shall not be limited by
any law on compensation of a Trustee of an express trust. The Company agrees to
pay or reimburse the Trustee and each predecessor Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture and the
Securities or the issuance of the Securities or any series thereof (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all agents and other persons not regularly in its employ) except to the
extent any such expense, disbursement or advance may arise from its negligence
or bad faith. The Company shall indemnify the Trustee and each predecessor
Trustee for, and to hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of this
Indenture and the Securities or the issuance of the Securities or any series
thereof or the trusts hereunder and the performance of its duties hereunder,
including the costs and expenses of defending itself against or investigating
any claim of liability in the premises, except to the extent such loss liability
or expense is due to the negligence or bad faith of the Trustee or such
predecessor Trustee. The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee
may have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel; PROVIDED, that the Company will not be required to pay
such fees and expenses if it assumes the Trustee's defense and there is no
conflict of interest between the Company and the Trustee in connection with such
defense. The Company need not pay for any settlement made without its written
consent. The Company need not reimburse any expense or indemnify against any
loss or liability to the extent incurred by the Trustee through its negligence,
bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture or the rejection or termination of
this Indenture under
45
bankruptcy law. Such additional indebtedness shall be a senior claim to that of
the Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the Holders of particular
Securities or coupons, and the Securities are hereby subordinated to such senior
claim. If the Trustee renders services and incurs expenses following an Event
of Default under Section 6.1(e) or Section 6.1(f) hereof, the parties hereto and
the holders by their acceptance of the Securities hereby agree that such
expenses are intended to constitute expenses of administration under any
bankruptcy law.
SECTION 7.8 REPLACEMENT OF TRUSTEE. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and appointment
of a successor Trustee as Trustee with respect to the Securities of any series
shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the Securities of
any series at any time by so notifying the Company in writing. The Holders of a
majority in principal amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities of such series by
so notifying the Trustee and the Company in writing and may appoint a successor
Trustee with respect thereto with the consent of the Company. The Company may
remove the Trustee as Trustee with respect to the Securities of any series if:
(i) the Trustee is no longer eligible under Section 7.10 of this Indenture;
(ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other
public officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office, the Holders of a majority in principal
amount of the outstanding Securities of such series may appoint a successor
Trustee in respect of such Securities to replace the successor Trustee appointed
by the Company. If the successor Trustee with respect to the Securities of any
series does not deliver its written acceptance required by the next succeeding
paragraph of this Section 7.8 within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the outstanding Securities of such series may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect thereto.
A successor Trustee with respect to the Securities of any series shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company. Immediately after the delivery of such written acceptance, subject
to the lien provided for in Section 7.7, (i) the retiring Trustee shall transfer
all property held
46
by it as Trustee in respect of the Securities of such series to the successor
Trustee, (ii) the resignation or removal of the retiring Trustee in respect of
the Securities of such series shall become effective and (iii) the successor
Trustee shall have all the rights, powers and duties of the Trustee in respect
of the Securities of such series under this Indenture. A successor Trustee
shall mail notice of its succession to each Holder of Securities of such series.
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 referred to in the
preceding paragraph.
The Company shall give notice of any resignation and any removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee in respect of the Securities of such series to all Holders
of Securities of such series. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's obligations
under Section 7.7 shall continue for the benefit of the retiring Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION 7.10 ELIGIBILITY. This Indenture shall always have a
Trustee who satisfies the requirements of Trust Indenture Act Section 310(a).
The Trustee shall have a combined capital and surplus of at least $10,000,000 as
set forth in its most recent published annual report of condition, if any. The
Trustee shall comply with Trust Indenture Act Section 310(b). If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this Article.
SECTION 7.11 MONEY HELD IN TRUST. The Trustee shall not be liable
for interest on any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law and except for
money held in trust under Article 8 of this Indenture.
47
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 DEFEASANCE WITHIN ONE YEAR OF PAYMENT. Except as
otherwise provided in this Section 8.1, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(i) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of
such series that have been replaced or Securities of such series that are
paid pursuant to Section 4.1 or Securities of such series for whose payment
money or securities have theretofore been held in trust and thereafter
repaid to the Company, as provided in Section 8.5) have been delivered to
the Trustee for cancellation and the Company has paid all sums payable by
it hereunder; or
(ii) (A) the Securities of such series mature within one year or all
of them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (B) the
Company irrevocably deposits in trust with the Trustee, as trust funds
solely for the benefit of the Holders of such Securities for that purpose,
money or U.S. Government Obligations or a combination thereof sufficient
(unless such funds consist solely of money, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee), without consideration of
any reinvestment, to pay Principal of and interest on the Securities of
such series to maturity or redemption, as the case may be, and to pay all
other sums payable by it hereunder, and (C) the Company delivers to the
Trustee an Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture with respect to the Securities
of such series have been complied with.
With respect to the foregoing clause (i), only the Company's
obligations under Sections 7.7 and 8.5 in respect of the Securities of such
series shall survive. With respect to the foregoing clause (ii), only the
Company's obligations in Sections 2.2 through 2.12, 4.2, 7.7, 7.8 and 8.5 in
respect of the Securities of such series shall survive until such Securities of
such series are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.7 and 8.5 in respect of the Securities of such series
shall survive. After any such irrevocable deposit, the Trustee shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of such series and this Indenture with respect to the Securities of
such series except for those surviving obligations specified above.
48
SECTION 8.2 DEFEASANCE. Except as provided below, the Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); PROVIDED that the following conditions shall have been
satisfied:
(i) the Company has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the Securities of
such series, for payment of the Principal of and interest on the Securities
of such series, money or U.S. Government Obligations or a combination
thereof sufficient (unless such funds consist solely of money, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee)
without consideration of any reinvestment and after payment of all federal,
state and local taxes or other charges and assessments in respect thereof
payable by the Trustee, to pay and discharge the Principal of and accrued
interest on the outstanding Securities of such series to maturity or
earlier redemption (irrevocably provided for under arrangements
satisfactory to the Trustee), as the case may be;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company is a party or by which it is bound;
(iii) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(iv) the Company shall have delivered to the Trustee (1) either (x) a
ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the 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 8.2 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 deposit and
defeasance had not occurred or (y) an Opinion of Counsel to the same effect
as the ruling described in clause (x) above and based upon a change in law
and (2) an Opinion of Counsel to the effect that the Holders of the
Securities of such series have a valid security interest in the trust funds
subject to no prior liens under the UCC; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.2 of the Securities of such series have been
complied with.
49
The Company's obligations in Sections 2.2 through 2.12, 4.2, 7.7, 7.8
and 8.5 with respect to the Securities of such series shall survive until such
Securities are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.7 and 8.5 shall survive.
SECTION 8.3 COVENANT DEFEASANCE. The Company may omit to comply
with any term, provision or condition set forth in Sections 4.3 or 4.4 (or any
other specific covenant relating to such series provided for in a Board
Resolution or supplemental indenture pursuant to Section 2.3 which may by its
terms be defeased pursuant to this Section 8.3), and such omission shall be
deemed not to be an Event of Default under clauses (c), (d) or (g) of Section
6.1, with respect to the outstanding Securities of a series if:
(i) the Company has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the Securities of
such series, for payment of the Principal of and interest, if any, on the
Securities of such series, money or U.S. Government Obligations or a
combination thereof in an amount sufficient (unless such funds consist
solely of money, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee) without consideration of any reinvestment and
after payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay and discharge
the Principal of and interest on the outstanding Securities of such series
to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company is a party or by which it is bound;
(iii) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the Holders of the Securities of such series have a
valid security interest in the trust funds subject to no prior liens under
the UCC and (B) such Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and covenant
defeasance 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 deposit and defeasance had not occurred; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent
50
provided for herein relating to the covenant defeasance contemplated by
this Section 8.3 of the Securities of such series have been complied with.
SECTION 8.4 APPLICATION OF TRUST MONEY. Subject to Section 8.5, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.1, 8.2 or 8.3, as the case may be, in
respect of the Securities of any series and shall apply the deposited money and
the proceeds from deposited U.S. Government Obligations in accordance with the
Securities of such series and this Indenture to the payment of Principal of and
interest on the Securities of such series; but such money need not be segregated
from other funds except to the extent required by law. The Company shall pay
and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
8.1, 8.2 or 8.3, as the case may be, or the principal and interest received in
respect thereof, other than any such tax, fee or other charge that by law is for
the account of the Holders.
SECTION 8.5 REPAYMENT TO COMPANY. Subject to Sections 7.7, 8.1, 8.2
and 8.3, the Trustee and the Paying Agent shall promptly pay to the Company upon
request set forth in an Officers' Certificate any money held by them at any time
and not required to make payments hereunder and thereupon shall be relieved from
all liability with respect to such money. The Trustee and the Paying Agent
shall pay to the Company upon written request any money held by them and
required to make payments hereunder under this Indenture that remains unclaimed
for two years; PROVIDED that the Trustee or such Paying Agent before being
required to make any payment may cause to be published at the expense of the
Company once in an Authorized Newspaper in The City of New York or with respect
to any Security the interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits in an Authorized Newspaper in
London or mail to each Holder entitled to such money at such Holder's address
(as set forth in the Security Register) notice that such money remains unclaimed
and that after a date specified therein (which shall be at least 30 days from
the date of such publication or mailing) any unclaimed balance of such money
then remaining will be repaid to the Company. After payment to the Company,
Holders entitled to such money must look to the Company for payment as general
creditors unless an applicable law designates another Person, and all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
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ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 WITHOUT CONSENT OF HOLDERS. The Company, the Guarantor
and the Trustee may amend or supplement this Indenture or the Securities of any
series without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; PROVIDED that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
(5) to establish the form or forms or terms of Securities of any
series or of the coupons appertaining to such Securities as permitted by
Section 2.3;
(6) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose;
(7) to change or eliminate any provisions of the Indenture with
respect to all or any series of the Securities not then outstanding (and,
if such change is applicable to fewer than all such series of the
Securities, specifying the series to which such change is applicable), and
to specify the rights and remedies of the Trustee and the holders of such
Securities in connection therewith; and
(8) to make any change that does not materially and adversely affect
the rights of any Holder.
SECTION 9.2 WITH CONSENT OF HOLDERS. Subject to Sections 6.4 and
6.7, without prior notice to any Holders, the Company, the Guarantor, and the
Trustee may amend this Indenture and the Securities of any series with the
written consent of the Holders of a majority in principal amount of the
outstanding Securities of all series affected by such supplemental indenture
(all such series voting as one class), and the
52
Holders of a majority in principal amount of the outstanding Securities of all
series affected thereby (all such series voting as one class) by written notice
to the Trustee may waive future compliance by the Company or the Guarantor with
any provision of this Indenture or the Securities of such series.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.4, may not:
(i) extend the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's Security,
or reduce the Principal amount thereof or the rate of interest thereon
(including any amount in respect of original issue discount), or any
premium payable with respect thereto, or adversely affect the rights of
such Holder under any mandatory redemption or repurchase provision or any
right of redemption or repurchase at the option of such Holder, or reduce
the amount of the Principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity thereof
pursuant to Section 6.2 or the amount thereof provable in bankruptcy, or
change any place of payment where, or the currency in which, any Security
or any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the due
date therefor;
(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required
for any such supplemental indenture, for any waiver of compliance with
certain provisions of this Indenture or certain Defaults and their
consequences provided for in this Indenture;
(iii) waive a Default in the payment of Principal of or interest on
any Security of such Holder; or
(iv) modify any of the provisions of this Section 9.2, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series with respect to such covenant
or provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or of the coupons appertaining to
such Securities.
53
It shall not be necessary for the consent of any Holder under this
Section 9.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company or, at the Company's request, the Trustee shall
give to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. The Company or, at the Company's request, the Trustee
will mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.3 REVOCATION AND EFFECT OF CONSENT. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the Security of the consenting Holder, even if
notation of the consent is not made on any Security. However, any such Holder
or subsequent Holder may revoke the consent as to its Security or portion of its
Security. Such revocation shall be effective only if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective.
The Company may, but shall not be obligated to, fix a record date
(which may be not less than 10 nor more than 60 days prior to the solicitation
of consents) for the purpose of determining the Holders of the Securities of any
series affected entitled to consent to any amendment, supplement or waiver. If
a record date is fixed, then, notwithstanding the immediately preceding
paragraph, those Persons who were such Holders at such record date (or their
duly designated proxies) and only those Persons shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be such Holders after such record date.
No such consent shall be valid or effective for more than 90 days after such
record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities theretofore or thereafter authenticated and delivered
hereunder unless it is of the type described in any of clauses (i) through (iv)
of Section 9.2. In case of an amendment or waiver of the type described in
clauses (i) through (iv) of Section 9.2, the amendment or waiver shall bind each
such Holder who has consented to it and every subsequent Holder of a Security
that evidences the same indebtedness as the Security of the consenting Holder.
SECTION 9.4 NOTATION ON OR EXCHANGE OF SECURITIES. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may require
the Holder thereof to deliver it to the Trustee. The Trustee may place an
54
appropriate notation on the Security about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Security of
such series thereafter authenticated. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security of the same series and tenor that
reflects the changed terms.
SECTION 9.5 TRUSTEE TO SIGN AMENDMENTS, ETC. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to customary exceptions. Subject
to the preceding sentence, the Trustee shall sign such amendment, supplement or
waiver if the same does not adversely affect the rights of the Trustee. The
Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
SECTION 9.6 CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article 9 shall conform to the requirements
of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 TRUST INDENTURE ACT OF 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act. If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by operation of Section 318(c) of the Trust
Indenture Act, the imposed duties shall control.
SECTION 10.2 NOTICES. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person when received or
(b) if mailed by first class mail 5 days after mailing, or (c) as between the
Company and the Trustee if sent by facsimile transmission, when transmission is
confirmed, in each case addressed as follows:
55
IF TO THE COMPANY:
Promus Hotels, Inc.
755 Crossover Lane
Memphis, TN 38117
Attention: General Counsel
IF TO THE GUARANTOR:
Promus Hotel Corporation
755 Crossover Lane
Memphis, TN 38117
Attention: General Counsel
IF TO THE TRUSTEE:
SouthTrust Bank of Alabama, National Association
One Office Park Drive
Birmingham, Alabama 35223
Attention: Corporate Trust Administration
The Company, the Guarantor or the Trustee by written notice to the
others may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to Holders of
any Unregistered Securities, by publication at least once in an Authorized
Newspaper in The City of New York, or with respect to any Security the interest
on which is based on the offered quotations in the interbank Eurodollar market
for dollar deposits at least once in an Authorized Newspaper in London, and by
mailing to the Holders thereof who have filed their names and addresses with the
Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such
addresses as were so furnished to the Trustee (and in the case of any notice
given by the Company or the Guarantor, the Trustee shall make such information
available to the Company or the Guarantor for such purpose) and to Holders of
Registered Securities by mailing to such Holders at their addresses as they
shall appear on the Security Register. Notice mailed shall be sufficiently
given if so mailed within the time prescribed. Copies of any such communication
or notice to a Holder shall also be mailed to the Trustee and each Agent at the
same time.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except as
otherwise
56
provided in this Indenture, if a notice or communication is mailed in the manner
provided in this Section 10.2, it is duly given, whether or not the addressee
receives it.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 10.3 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or the Guarantor to the Trustee
to take any action under this Indenture, the Company or the Guarantor shall
furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with.
SECTION 10.4 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinion contained in such
certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; PROVIDED,
HOWEVER,
57
that, with respect to matters of fact, an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate, statement or opinion of an officer of the Company or
the Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of counsel may be
based, insofar as it relates to factual matters or information that is in the
possession of the Company or the Guarantor, upon the certificate, statement or
opinion of or representations by an officer or officers of the Company or the
Guarantor, unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or
the Guarantor or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or
firm of accountants unless such officer or counsel, as the case may be, knows
that the certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or opinion may be based
as aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any certificate or opinion of any independent firm
of public accountants filed with the Trustee shall contain a statement that such
firm is independent.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 10.5 EVIDENCE OF OWNERSHIP. The Company, the Guarantor, the
Trustee and any agent of the Company, the Guarantor or the Trustee may deem and
treat the Holder of any Unregistered Security and the Holder of any coupon as
the absolute owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of receiving
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payment thereof or on account thereof and for all other purposes, and neither
the Company, the Guarantor, the Trustee, nor any agent of the Company, the
Guarantor or the Trustee shall be affected by any notice to the contrary. The
fact of the holding by any Holder of an Unregistered Security, and the
identifying number of such Security and the date of his holding the same, may be
proved by the production of such Security or by a certificate executed by any
trust company, bank, banker or recognized securities dealer wherever situated
satisfactory to the Trustee, if such certificate shall be deemed by the Trustee
to be satisfactory. Each such certificate shall be dated and shall state that
on the date thereof a Security bearing a specified identifying number was
deposited with or exhibited to such trust company, bank, banker or recognized
securities dealer by the person named in such certificate. Any such certificate
may be issued in respect of one or more Unregistered Securities specified
therein. The holding by the person named in any such certificate of any
Unregistered Securities specified therein shall be presumed to continue for a
period of one year from the date of such certificate unless at the time of any
determination of such holding (1) another certificate bearing a later date
issued in respect of the same Securities shall be produced or (2) the Security
specified in such certificate shall be produced by some other Person, or (3) the
Security specified in such certificate shall have ceased to be outstanding.
Subject to Article 7, the fact and date of the execution of any such instrument
and the amount and numbers of Securities held by the Person so executing such
instrument may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in any other manner which the
Trustee may deem sufficient.
The Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may deem and treat the person in whose name any
Registered Security shall be registered upon the Security Register for such
series as the absolute owner of such Registered Security (whether or not such
Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the Principal of and, subject to the provisions of this Indenture,
interest on such Registered Security and for all other purposes; and none of the
Company, the Guarantor nor the Trustee nor any agent of the Company, the
Guarantor or the Trustee shall be affected by any notice to the contrary.
SECTION 10.6 RULES BY TRUSTEE, PAYING AGENT OR REGISTRAR. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 10.7 PAYMENT DATE OTHER THAN A BUSINESS DAY. If any date
for payment of Principal or interest on any Security shall not be a Business Day
at any place of payment, then payment of Principal of or interest on such
Security, as the case may be, need not be made on such date, but may be made on
the next succeeding Business Day at any place of payment with the same force and
effect as if made on
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such date and no interest shall accrue in respect of such payment for the period
from and after such date.
SECTION 10.8 GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THIS INDENTURE AND THE SECURITIES.
SECTION 10.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture
or agreement may not be used to interpret this Indenture.
SECTION 10.10 SUCCESSORS. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 10.11 DUPLICATE ORIGINALS. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 10.12 SEPARABILITY. 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 10.13 TABLE OF CONTENTS, HEADINGS, ETC. The Table of
Contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms and provisions
hereof.
SECTION 10.14 INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS OF
COMPANY AND THE GUARANTOR EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under
or upon any obligation, covenant or agreement contained in this Indenture or any
indenture supplemental hereto, or in any Security or any coupons appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future shareholder
(other than the Guarantor), officer, director or employee, as such, of the
Company or the Guarantor or of any successor, either directly or through the
Company or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Securities and the coupons appertaining thereto by the
holders thereof and as part of the consideration for the issue of the Securities
and the coupons appertaining thereto.
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SECTION 10.15 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 interest 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 day on
which final unappealable judgment is entered, unless such day is not a Business
Day, then, to the extent permitted by applicable law, 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 Business Day preceding the day on which final
unappealable judgment is entered 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 subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture.
ARTICLE 11
GUARANTEE
SECTION 11.1 GUARANTEE.
(a) Subject to subsection (b) below, the Guarantor hereby
irrevocably and unconditionally guarantees (such guarantee being the
"Guarantee") to each Holder of a Security authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Indenture and the Securities
hereunder, that: (i) the principal of, premium, if any, and interest on
the Securities promptly will be paid in full when due, whether at the
maturity or Interest Payment Date, by acceleration, call for redemption or
otherwise, and interest on the overdue principal, premium, if any, and
interest, if any, of the Securities, if lawful, and all other obligations
of the Company to the Holders or the Trustee hereunder or thereunder will
be promptly paid in full or performed, all in accordance with the terms
hereof and thereof, and (ii) in case of any extension of time of payment or
renewal of any Securities or any of such other obligations, the same
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will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at Stated Maturity, by
acceleration or otherwise. Failing payment when due by the Company of any
amount so guaranteed for whatever reason, the Guarantor shall be obligated
to pay the same immediately. The Guarantor hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any
Holder of the Securities with respect to any provisions hereof or thereof,
the recovery of any judgment against the Company, any action to enforce the
same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest, notice and all demands
whatsoever and covenants that this Guarantee shall not be discharged except
by complete performance of the obligations contained in the Securities and
this Indenture. If any Holder or the Trustee is required by any court or
otherwise to return to the Company or any custodian, Trustee, liquidator or
other similar official acting in relation to the Company, any amount paid
by the Company to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. The
Guarantor agrees that it shall not be entitled to any right of subrogation
in relation to the Holders in respect of any obligations guaranteed hereby
until payment in full of all obligations is guaranteed hereby.
(b) It is the intention of the Guarantor and the Company that the
obligations of the Guarantor hereunder shall be, but not in excess of, the
maximum amount permitted by applicable law. Accordingly, if the
obligations in respect of the Guarantee would be annulled, avoided or
subordinated to the creditors of the Guarantor by a court of competent
jurisdiction in a proceeding actually pending before such court as a result
of a determination both that such Guarantee was made without fair
consideration and, immediately after giving effect thereto, the Guarantor
was insolvent or unable to pay its debts as they mature or left with an
unreasonably small capital, then the obligations of the Guarantor under the
Guarantee shall be reduced by such court if such reduction would result in
the avoidance of such annulment, avoidance or subordination; provided,
however, that any reduction pursuant to this paragraph shall be made in the
smallest amount as is strictly necessary to reach such result. For
purposes of this paragraph, "fair consideration," "insolvency," "unable to
pay its debts as they mature," "unreasonably small capital" and the
effective times of reductions, if any, required by this paragraph shall be
determined in accordance with applicable law.
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(c) The Guarantor shall be subrogated to all rights of the Holders
against the Company in respect of any amounts paid by Guarantor pursuant to
the provisions of the Guarantee or this Indenture; provided, however, that
the Guarantor shall not be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation until the
principal of, premium, if any, and interest on all Securities issued
hereunder shall have been paid in full.
SECTION 11.2 EXECUTION AND DELIVERY OF GUARANTEE. To evidence the
Guarantee set forth in Section 11.1, the Company and the Guarantor hereby agree
that a notation of such Guarantee shall be endorsed on each Security
authenticated and delivered by the Trustee, that such notation of such Guarantee
shall be in such form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate provisions as are required or permitted by this Indenture, and
that this Indenture shall be executed on behalf of the Guarantor by its Chairman
of the Board, one of its Vice Chairmen of the Board, its President or one of its
Vice Presidents under a facsimile of its seal reproduced thereon and attested to
by another officer other than the officer executing the Indenture, as the case
may be.
The Guarantor hereby agrees that the Guarantee set forth in Section
11.1 shall remain in full force and effect notwithstanding any failure to
endorse on each Security a notation of the Guarantee.
If an officer whose signature is on this Indenture no longer holds
that office at the time the Trustee authenticates the Security on which the
Guarantee is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantor.
SECTION 11.3 RELEASE OF GUARANTOR. The Guarantor shall be released
from all of its obligations under the Guarantee and under this Indenture if:
(a) (i) the Company or the Guarantor has transferred all or
substantially all of its properties and assets to any Person (whether by
sale, merger or consolidation or otherwise), or has merged into or
consolidated with another Person, pursuant to a transaction in compliance
with this Indenture;
(ii) the corporation to whom all or substantially all of the
properties and assets of the Company or the Guarantor are transferred, or
whom the Company or the Guarantor has merged into or consolidated with, has
expressly assumed, by an indenture supplemental hereto, executed and
delivered
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to the Trustee, in form satisfactory to the Trustee, all the obligations of
the Guarantor under the Guarantees and this Indenture;
(iii) immediately before and immediately after giving effect to
such transaction, no Event of Default, and no event or condition which,
after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing; nd
(iv) the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture comply
with this Section 11.3 and that all conditions precedent herein provided
for relating to such transaction have been complied with; or
(b) the Guarantor liquidates (other than pursuant to any Bankruptcy
Law) and complies, if applicable, with the provisions of this Indenture;
provided that if a Person and its Affiliates, if any, shall acquire all or
substantially all of the assets of the Guarantor upon such liquidation the
Guarantor shall liquidate only if:
(i) the Person and each such Affiliate (or the common corporate
parent of such Person and its Affiliates, if such Person and its Affiliates
are wholly owned by such Parent) which acquire or will acquire all or a
portion of the assets of the Guarantor shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of the Guarantor,
under the Guarantees and this Indenture and such Person or any of such
Affiliates (or such parent) shall be a corporation organized and existing
under the laws of the United States or any State thereof or the District of
Columbia;
(ii) immediately after giving effect to such transaction, no
Event of Default, and no event or condition which, after notice or lapse of
time or both, would become an Event of Default, shall have occurred and be
continuing; and
(iii) the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such liquidation
and such supplemental indenture comply with this Section 11.3 and that all
conditions precedent herein provided for relating to such transaction have
been complied with; or
(c) the Company ceases for any reason to be a "wholly owned
subsidiary" of the Guarantor (as such term is defined in Rule 1-02(z) of
the Regulation S-X promulgated by the Commission).
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Upon any assumption of the Guarantee by any Person pursuant to this
Section, such Person may exercise every right and power of the Guarantor under
this Indenture with the same effect as if such successor corporation had been
named as the Guarantor herein, and all the obligations of the Guarantor,
hereunder and under the Guarantees and the Indenture shall terminate.
SECTION 11.4 WHEN GUARANTOR MAY MERGE, ETC. The Guarantor shall not
consolidate with or merge with or into any other Person or, directly or
indirectly, sell, lease or convey all or substantially all of its assets
(computed on a consolidated basis), whether in a single transaction or a series
of related transactions, to another Person, unless:
(a) either the Guarantor shall be the continuing person, or the
Person (if other than the Guarantor) formed by such consolidation or into
which the Guarantor is merged or to which the assets of the Guarantor are
transferred shall be a corporation organized and validly existing under the
laws of the United States or any State thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Guarantor under the Guarantee and this Indenture;
(b) immediately giving effect to such transaction, no Event of
Default, and no event or condition which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing; and
(c) the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, conveyance or lease and such supplemental
indenture comply with this Section and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Upon any consideration or merger, or any sale, conveyance or lease of
all or substantially all of the assets of the Guarantor, in accordance with this
Section, the successor corporation formed by such consolidation or into which
the Guarantor is merged or to which such transfer is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Guarantor
under this Indenture with the same effect as if such successor corporation had
been named as the Guarantor herein, and all the obligations of the predecessor
Guarantor hereunder and under the Guarantee and the Indenture shall terminate.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
(SEAL) PROMUS HOTELS, INC.
Attest: as the Company
- -----------------------
Name:
Title:
By:
-----------------------
Name:
Title:
(SEAL) PROMUS HOTEL CORPORATION
Attest: as the Guarantor
- -----------------------
Name:
Title:
By:
-----------------------
Name:
Title:
(SEAL) SOUTHTRUST BANK OF ALABAMA,
Attest: NATIONAL ASSOCIATION
as Trustee
- ------------------------
Name:
Title:
By:
------------------------
Name:
Title:
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