Exhibit 4.1
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OMNICARE, INC.
SENIOR DEBT SECURITIES
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INDENTURE
Dated as of [_________]
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[_________]
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
310(a)(1)................................................... 7.10
(a)(2)................................................... 7.10
(a)(3)................................................... N.A.
(a)(4)................................................... N.A.
(a)(5)................................................... 7.10
(b)...................................................... 7.10
(c)...................................................... N.A.
311(a)...................................................... 7.11
(b)...................................................... 7.11
(c)...................................................... N.A.
312(a)...................................................... 2.07
(b)...................................................... 13.03
(c)...................................................... 13.03
313(a)...................................................... 7.06
(b)(1)................................................... 7.06
(b)(2)................................................... 7.07
(c)...................................................... 7.06; 13.02
(d)...................................................... 7.06
314(a)...................................................... 4.03; 13.02
(b)...................................................... 10.02
(c)(1)................................................... 13.04
(c)(2)................................................... 13.04
(c)(3)................................................... N.A.
(d)...................................................... N.A.
(e)...................................................... 13.05
(f)...................................................... N.A.
315(a)...................................................... 7.01
(b)...................................................... 7.05, 13.02
(c)...................................................... 7.01
(d)...................................................... 7.01
(e)...................................................... 6.11
316(a)(last sentence)....................................... 2.11
(a)(1)(A)................................................ 6.05
(a)(1)(B)................................................ 6.04
(a)(2)................................................... N.A.
(b)...................................................... 6.07
(c)...................................................... 2.14
317(a)(1)................................................... 6.08
(a)(2)................................................... 6.09
(b)...................................................... 2.06
318(a)...................................................... 13.01
(b)...................................................... N.A.
(c)...................................................... 12.01
N.A. means not applicable.
* This Cross Reference Table is not part of this Indenture.
TABLE OF CONTENTS
Page
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ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.......................................................................1
Section 1.02 Other Definitions.................................................................6
Section 1.03 Incorporation by Reference of Trust Indenture Act.................................6
Section 1.04 Rules of Construction.............................................................7
ARTICLE 2.
THE SECURITIES
Section 2.01 Form Generally....................................................................7
Section 2.02 Securities in Global Form.........................................................7
Section 2.03 Title and Terms...................................................................8
Section 2.04 Execution, Authentication, Delivery and Dating...................................10
Section 2.05 Registrar and Paying Agent.......................................................11
Section 2.06 Paying Agent to Hold Money in Trust..............................................12
Section 2.07 Holder Lists.....................................................................12
Section 2.08 Registration, Registration of Transfer and Exchange..............................12
Section 2.09 Replacement Securities...........................................................14
Section 2.10 Outstanding Securities...........................................................14
Section 2.11 Treasury Securities..............................................................15
Section 2.12 Temporary Securities.............................................................15
Section 2.13 Cancellation.....................................................................15
Section 2.14 Payment of Interest..............................................................16
Section 2.15 Persons Deemed Owners............................................................16
Section 2.16 Computation of Interest..........................................................16
Section 2.17 CUSIP Numbers....................................................................17
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Right to Redeem; Notices to Trustee..............................................17
Section 3.02 Selection of Securities to Be Redeemed...........................................17
Section 3.03 Notice of Redemption to Holders..................................................17
Section 3.04 Effect of Notice of Redemption...................................................18
Section 3.05 Deposit of Redemption Price......................................................18
Section 3.06 Securities Redeemed in Part......................................................19
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Securities............................................................19
Section 4.02 Maintenance of Office or Agency..................................................19
Section 4.03 Reports..........................................................................20
Section 4.04 Compliance Certificate...........................................................20
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ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.........................................20
Section 5.02 Successor Corporation Substituted................................................21
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default................................................................21
Section 6.02 Acceleration.....................................................................22
Section 6.03 Other Remedies...................................................................23
Section 6.04 Waiver of Past Defaults..........................................................23
Section 6.05 Control by Majority..............................................................23
Section 6.06 Limitation on Suits..............................................................23
Section 6.07 Rights of Holders of Securities to Receive Payment and Convert...................24
Section 6.08 Collection Suit by Trustee.......................................................24
Section 6.09 Trustee May File Proofs of Claim.................................................24
Section 6.10 Priorities.......................................................................25
Section 6.11 Undertaking for Costs............................................................25
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee................................................................25
Section 7.02 Rights of Trustee................................................................26
Section 7.03 Individual Rights of Trustee.....................................................27
Section 7.04 Trustee's Disclaimer.............................................................27
Section 7.05 Notice of Defaults...............................................................27
Section 7.06 Reports by Trustee to Holders of the Securities..................................27
Section 7.07 Compensation and Indemnity.......................................................28
Section 7.08 Replacement of Trustee...........................................................28
Section 7.09 Successor Trustee by Merger, etc.................................................29
Section 7.10 Eligibility; Disqualification....................................................29
Section 7.11 Preferential Collection of Claims Against Company................................30
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.........................30
Section 8.02 Legal Defeasance and Discharge...................................................30
Section 8.03 Covenant Defeasance..............................................................30
Section 8.04 Conditions to Legal or Covenant Defeasance.......................................31
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions................................................31
Section 8.06 Repayment to Company.............................................................32
Section 8.07 Reinstatement....................................................................32
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ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Securities.........................................33
Section 9.02 With Consent of Holders of Securities............................................34
Section 9.03 Compliance with Trust Indenture Act..............................................35
Section 9.04 Revocation and Effect of Consents................................................35
Section 9.05 Notation on or Exchange of Securities............................................35
Section 9.06 Trustee to Sign Amendments, etc..................................................35
Section 9.07 Effect of Supplemental Indentures................................................36
ARTICLE 10.
SINKING FUNDS
Section 10.01 Applicability of Article.........................................................36
Section 10.02 Satisfaction of Sinking Fund Payments with Securities............................36
Section 10.03 Redemption of Securities for Sinking Fund........................................36
ARTICLE 11.
SECURITY GUARANTEES
Section 11.01 Applicability of this Article....................................................37
Section 11.02 Guarantee........................................................................37
Section 11.03 Limitation on Guarantor Liability................................................38
Section 11.04 Release of Guarantors............................................................38
ARTICLE 12.
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge.......................................................38
Section 12.02 Application of Trust Money.......................................................39
ARTICLE 13.
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls.....................................................39
Section 13.02 Notices..........................................................................39
Section 13.03 Communication by Holders of Securities with Other Holders of Securities..........40
Section 13.04 Certificate and Opinion as to Conditions Precedent...............................40
Section 13.05 Statements Required in Certificate or Opinion....................................41
Section 13.06 Rules by Trustee and Agents......................................................41
Section 13.07 No Personal Liability of Directors, Officers, Employees and Stockholders.........42
Section 13.08 Governing Law....................................................................42
Section 13.09 No Adverse Interpretation of Other Agreements....................................42
Section 13.10 Successors.......................................................................42
Section 13.11 Severability.....................................................................42
Section 13.12 Counterpart Originals............................................................42
Section 13.13 Table of Contents, Headings, etc.................................................42
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EXHIBITS
Exhibit A FORM OF SECURITY
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INDENTURE dated as of [_______] between Omnicare, Inc., a Delaware
corporation (the "Company"), and [____________], as trustee (the "Trustee").
The Company has duly authorized the execution and delivery of this
Indenture (as defined herein) to provide for the issuance from time to time of
its debentures, notes or other evidences of indebtedness (herein called the
"Securities") to be issued in one or more series as provided in this Indenture.
For and in consideration of the premises and purchase of the Securities by
the Holders (as defined herein) thereof, it is mutually covenanted and agreed,
for the equal and ratable benefit of the Holders of the Securities of each
series thereof as follows:
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control",
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Bearer Security" means any Security, including any interest coupons
appertaining thereto, that does not provide for the identification of the Holder
thereof.
"Board of Directors" means the board of directors of the Company (or any
duly authorized committee thereof);
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination is to be
made, the amount of the liability in respect of a capital lease that would at
that time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means:
(a) in the case of a corporation, corporate stock;
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock;
(c) in the case of a partnership or limited liability company, partnership
or membership interests (whether general or limited); and
(d) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of assets of,
the issuing Person.
"Company" means Omnicare, Inc., and any and all successors thereto.
"Company Order" means a written order signed in the name of the Company by
an Officer and delivered to the Trustee or, with respect to Sections 2.04, 2.08,
2.09, 2.12 and 9.05 any other employee of the Company named in an Officers'
Certificate delivered to the Trustee.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to the Securities issuable or issued in
whole or in part in global form, the Person specified pursuant to Section
2.03(a) hereof as the Depositary with respect to the Securities, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
"Discount Security" means any Security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section 6.02 hereof.
"Domestic Subsidiary" means any Restricted Subsidiary organized under the
laws of the United States or any state of the United States or the District of
Columbia.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of determination.
"Global Security" or "Global Securities" means any Security or Securities,
as the case may be, in the form established pursuant to Section 2.02 evidencing
all or a part of a series of Securities issued to the Depositary of such series
or its nominee and registered in the name of such Depositary or nominee.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
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"Guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"Guarantor" means with respect to Securities of any series, any Domestic
Subsidiary who has guaranteed the Company's obligations under this Indenture and
with respect to such series of Securities pursuant to Article 12 hereof;
provided that upon the release and discharge of any Person from its Security
Guarantee in accordance with this Indenture, such Person shall cease to be a
Guarantor.
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under (a) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (b) other agreements
or arrangements designed to protect such Person against fluctuations in interest
rates or foreign exchange rates.
"Holder" means a Person in whose name a Security is registered.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar instruments or letters
of credit (or reimbursement agreements in respect thereof);
(c) in respect of banker's acceptances;
(d) representing Capital Lease Obligations;
(e) representing the balance deferred and unpaid of the purchase price of
any property; or
(f) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by the specified Person of any indebtedness of any other Person, in each case
limited to the maximum amount of liability of the specified Person with respect
to such Lien or Guarantee on the date in question. Notwithstanding anything in
the foregoing to the contrary, Indebtedness shall not include trade payables or
accrued expenses for property or services incurred in the ordinary course of
business.
The amount of any Indebtedness issued with original issue discount will be
the accreted value of such Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
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"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the Company
or, if applicable, a Guarantor, by two Officers of the Company, one of whom must
be the principal executive officer, the principal financial officer, the
treasurer or the principal accounting officer of the Company, that meets the
requirements of Section 13.05 hereof.
"Opinion of Counsel" means, as to the Company or, if applicable, a
Guarantor, an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 13.05 hereof. The counsel may be
an employee of or counsel to the Company, any Subsidiary of the Company or the
Trustee.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Redemption Date," when used with respect to any Security to be redeemed,
shall mean the date specified for redemption of such Security in accordance with
the terms of such Security and this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 2.01 hereof which is
registered on the books of the Registrar.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 2.03(a) hereof.
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Debt.
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"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means any direct or indirect Subsidiary of the
Company other than an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Guarantee" means, with respect to the Securities of any series,
the Guarantee with respect to the Securities of such series by each Guarantor
pursuant to Article 12 hereof and a supplemental indenture.
"Securities" has the meaning assigned to it in the preamble to this
Indenture.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date
hereof.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any issue means a date fixed by the Trustee pursuant to
Section 2.14 hereof.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and will not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, (a) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or
controlled, directly or indirectly, by the Company and/or by one or more of its
Restricted Subsidiaries, or (b) any partnership, limited liability company,
association, joint venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. 'SS''SS'
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Trustee" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a
Board Resolution, but only to the extent that such Subsidiary:
(a) has no Indebtedness other than Indebtedness that is without recourse to
the Company or its Restricted Subsidiaries;
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(b) is not party to any agreement, contract, arrangement or understanding
with the Company or any Restricted Subsidiary unless the terms of any such
agreement, contract, arrangement or understanding are not materially less
favorable to the Company or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Company;
(c) is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any (a) continuing direct or indirect obligation to
subscribe for additional Equity Interests or (b) direct or indirect obligation
to maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; and
(d) has not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted
Subsidiaries.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
Section 1.02 Other Definitions.
Defined in
Term Section
- ---- ----------
"Bankruptcy Law" ........................................... 4.01
"Covenant Defeasance" ...................................... 8.03
"Defaulted Interest" ....................................... 2.14
"Event of Default" ......................................... 6.01
"Legal Defeasance" ......................................... 8.02
"Paying Agent" ............................................. 2.05
"Registrar" ................................................ 2.05
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security Holder" means a Holder of a Security;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Securities and the Security Guarantees means the Company
and the Guarantors, respectively, and any successor obligor upon the Securities
and the Security Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them.
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Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include the
singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement of successor sections or rules adopted
by the SEC from time to time.
ARTICLE 2.
THE SECURITIES
Section 2.01 Form Generally
The Securities of each series shall be substantially in the form of Exhibit
A hereto or in such other form as shall be established by delivery to the
Trustee of an Officers' Certificate or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
Officers executing such Securities as evidenced by their execution of the
Securities.
The permanent Securities shall be printed, lithographed, engraved or cord
processed or produced by any combination of these methods or may be produced in
any other manner, provided that such method is permitted by the rules of any
securities exchange on which such Securities may be listed, all as determined by
the Officers executing such Securities as evidenced by their execution of such
Securities.
Section 2.02 Securities in Global Form
If Securities of a series are issuable as a Global Security, as specified
as contemplated by Section 2.03(a) hereof, then, notwithstanding clause (9) of
Section 2.03(a) hereof and the provisions of Section 2.03(b) hereof, any such
Global Security shall represent such of the outstanding Securities of such
series as shall be specified therein and may provide that it shall represent the
aggregate principal amount of outstanding Securities from time to time endorsed
thereon or otherwise notated on the books and records of the Registrar and that
the aggregate principal amount of outstanding Securities represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions. Any endorsement of a Global Security to reflect the aggregate
principal amount of any increase or decrease in the amount of outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by the Holder thereof as required by Section 2.08
hereof.
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form. Permanent Global Securities will be issued
in definitive form.
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The provisions of the last sentence of Section 2.04 hereof shall apply to
any Security represented by a Global Security if such Security was never issued
and sold by the Company, and the Company delivers to the Trustee the Security in
global form together with written instructions (which need not comply with
Section 13.04 or 13.05 hereof and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 2.04 hereof.
Notwithstanding the provisions of Sections 2.02 and 2.14 hereof, unless
otherwise specified as contemplated by Section 2.03(a) hereof, payment of
principal of and any interest on any Global Security shall be made to the person
or persons specified therein.
None of the Company, the Guarantor, if any, the Trustee of such series of
Securities, any Paying Agent or Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 2.03 Title and Terms.
(a) The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series. There shall be established and, subject to Section 2.04
hereof, set forth, or determined in the manner provided, in an Officers'
Certificate or established in one or more indentures supplemental hereto, prior
to the issuances of Securities of any series, any or all of the following, as
applicable:
(1) the title and series designation of the Securities of the series (which
shall distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of,
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 2.08, 2.09, 2.12, 3.06, 9.05 or 10.03 hereof
and except for any Securities which, pursuant to Section 2.04 hereof, are
deemed never to have been authenticated and delivered hereunder);
(3) the price or prices at which the Securities of the series will be
issued;
(4) if the Securities of the series will be guaranteed and the terms of any
such Security Guarantees;
(5) the date or dates on which the principal amount and premium, if any, of
the Securities of the series is payable;
(6) the interest rate or rates or the method for calculating the interest
rate, which may be fixed or variable, of the Securities of the series, the
date or dates from which any such interest shall accrue and the Interest
Payment Dates on which such interest shall be payable, subject to the
right, if any, of the Company to defer or extend an Interest Payment Date
and the duration of such deferral or extension;
(7) the place or places where, subject to the provisions of Section 4.02
hereof, the principal of, premium, if any, and interest on Securities of
the series will be payable and where any Securities of the series may be
surrendered for registration of transfer, Securities of the series may be
8
surrendered for exchange and notices and demands to or upon the Company in
respect of the Securities of the series and this Indenture may be served;
(8) the right, if any, to redeem the Securities of the series and the terms
and conditions upon which Securities of the series may be redeemed, in
whole or in part;
(9) any mandatory or optional sinking fund or analogous provisions;
(10) whether the Securities of the series will be secured and any
provisions relating to the security provided;
(11) if and the terms and conditions upon which the Securities of the
series may or must be converted into securities of the Company or exchanged
for securities of the Company or another enterprise;
(12) if other than the principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.02 hereof;
(13) whether the Securities of the series, in whole or any specified part,
shall not be defeasible pursuant to Section 8.04 or 8.05 hereof or both
such Sections and, if other than by an Officers' Certificate, the manner in
which any election by the Company to defease such Securities shall be
evidenced;
(14) any addition to or change in the Events of Default which apply to any
Securities of the series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 6.02 hereof;
(15) if other than U.S. dollars, the currency or currencies in which
payment of the principal of, premium, if any, and interest on the
Securities of the series shall be payable and whether the Securities of the
series may be satisfied and discharged other than as provided in Article 8
hereof;
(16) any terms applicable to Original Issue Discount, if any, (as that term
is defined in the Internal Revenue Code of 1986 and the Regulations
thereunder) including the rate or rates at which such Original Issue
Discount, if any, shall accrue;
(17) if the Securities of the series may be issued or delivered (whether
upon original issuance or upon exchange of a temporary Security of such
series or otherwise), or any installment of principal of, or any premium or
interest is payable, only upon receipt of certain certificates or other
documents or satisfaction of other conditions in addition to those
specified in this Indenture, the form and terms of such certificates,
documents or conditions;
(18) whether the Securities of the series may be represented initially by a
Security in temporary or permanent global form and, if so, the Depositary
with respect to any such temporary or permanent Global Security, and if
other than as provided in Section 2.08 or 2.12 hereof, as applicable,
whether and the circumstances under which beneficial owners of interests in
any such temporary or permanent Global Security may exchange such interests
for Securities of such series and of like tenor of any authorized form and
denomination;
(19) whether Securities of the series are to be issued as Registered
Securities, Bearer Securities or both, the terms and conditions relating to
the applicable form, including, but not limited to, tax
9
compliance, registration and transfer procedures and, if in registered
form, the denominations in which any Registered Securities of the series
will be issuable if other than denominations of $1,000 and any integral
multiple thereof and if in bearer form, the denominations in which any
Bearer Securities will be issuable;
(20) any special United States federal income tax considerations applicable
to the Securities of the series;
(21) any addition to or change in the covenants set forth in Article 4
which apply to Securities of the series; and
(22) any other terms of the Securities of the series (which terms shall not
be inconsistent with the provisions of this Indenture, except as permitted
by Section 9.01(i) hereof).
All Securities of any one series shall be substantially identical except as
to denomination and the rate or rates of interest, if any, and Stated Maturity,
the date from which interest, if any, shall accrue and except as may otherwise
be provided in or pursuant to an Officers' Certificate pursuant to this Section
2.03(a) or in any indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened for issuances of additional
Securities of such series or for the establishment of additional terms with
respect to the Securities of such series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of any appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
(b) Unless otherwise provided as contemplated by Section 2.03(a) hereof
with respect to any series of Securities, the Securities of such series shall be
issuable in denominations of $1,000 or integral multiples thereof.
Section 2.04 Execution, Authentication, Delivery and Dating
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. If an Officer whose signature is on a Security no longer
holds that office at the time a Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature
of the Trustee. 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 (and subject to delivery of an Officers' Certificate or a supplemental
indenture as set forth in Section 2.03(a) hereof with respect to the initial
issuance of Securities of any series), the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication, together with
a Company Order for the authentication and delivery of such Securities; and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities. If the forms or terms of the Securities of the series have been
established in or pursuant to one or more Officers' Certificates as permitted by
Sections 2.01 and 2.03(a) hereof, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating:
10
(a) that the form or forms and terms of such Securities have been duly
authorized by the Company and established in conformity with the provisions of
this Indenture; and
(b) that such Securities when authenticated and delivered by the Trustee or
its authenticating agent and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance with
their terms, subject to customary exceptions.
Notwithstanding the provisions of Section 2.03(a) hereof and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 2.03(a) hereof and the
Opinion of Counsel required by the preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[______________________],
as Trustee
By:
Authorized Officer
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.13 hereof together with a written statement (which need
not comply with Section 13.04 or 13.05 hereof and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
Section 2.05 Registrar and Paying Agent.
The Company shall maintain, with respect to each series of Securities, an
office or agency where such Securities may be presented for registration of
transfer or for exchange ("Registrar") and an office or agency where Securities
may be presented for payment ("Paying Agent"). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
appoint one or more co-registrars and one or more additional paying agents. The
term "Registrar" includes any co-registrar and the term "Paying Agent" includes
any additional paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify the Trustee in
writing of the
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name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent.
Section 2.06 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of Holders
of Securities of any series or the Trustee all money held by the Paying Agent
for the payment of principal, premium, if any, or interest on such series of
Securities, and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Securities.
Section 2.07 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders of each series of Securities and shall otherwise comply with TIA
'SS' 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven Business Days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of such series of Securities and the Company shall
otherwise comply with TIA 'SS' 312(a).
Section 2.08 Registration, Registration of Transfer and Exchange.
Upon surrender for registration of transfer of any Securities of a series
at an office or agency of the Company designated pursuant to Section 4.02 hereof
for such purpose, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Securities of the same series of any authorized denominations, of a
like aggregate principal amount. The Company shall not charge a service charge
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the transfer or exchange of the
Securities from the Holder requesting such transfer or exchange (other than any
exchange of a temporary Security for a permanent Security not involving any
change in ownership or any exchange pursuant to Section 2.12, 3.06, 9.05 or 10.3
hereof, not involving any transfer).
Notwithstanding any other provisions (other than the provisions set forth
in the sixth and seventh paragraphs) of this Section 2.08, a Security in global
form 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.
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At the option of the Holder of Securities of any series, Securities of such
series may be exchanged for other Securities of the same series of any
authorized denomination or denominations of a like aggregate principal amount
and tenor, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Unless otherwise specified as contemplated by Section 2.03(a) hereof, if
the Securities of any series shall have been issued in the form of one or more
Global Securities, such series of Securities in global form will be exchanged
for Securities of such series in permanent form if (i) the Depositary for the
Securities of such series notifies the Company that it is unwilling or unable to
continue as Depositary for the Securities of such series and a successor
Depositary for the Securities of such series is not appointed by the Company
within 120 days after the Company receives such notice, (ii) the Company in its
sole discretion determines that the Securities of such series shall no longer be
represented by such Global Security or Securities or (iii) an Event of Default
with respect to the Securities of such series shall have occurred and be
continuing. In any such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of permanent
Securities of such series, will authenticate and deliver Securities of such
series in permanent form and in an aggregate principal amount equal to the
principal amount of the Security or Securities in global form representing such
series in exchange for such Security or Securities in global form.
Notwithstanding the foregoing, except as otherwise specified in the
preceding paragraph or as contemplated by Section 2.03(a) hereof, any Global
Security shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a Global Security are entitled to exchange
such interests for permanent Securities of such series and of like principal
amount and tenor but of another authorized form and denomination, as specified
as contemplated by Section 2.03(a) hereof, then without unnecessary delay but in
any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee permanent Securities in
aggregate principal amount equal to the principal amount of such Global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such Global Security shall be surrendered by the
Depositary with respect thereto to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for permanent
Securities without charge and the Trustee shall authenticate and deliver, in
exchange for each portion of such Global Security, an equal aggregate principal
amount of permanent Securities of the same series of authorized denominations
and of like tenor as the portion of such Global Security to be exchanged which
shall be in the form of Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that
notwithstanding the last paragraph of this Section 2.08 hereof, no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities of that series to be redeemed and ending on
the relevant Redemption Date. If a Registered Security is issued in exchange for
any portion of a Global Security after the close of business at the office or
agency where such exchange occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest
(as defined herein), interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such Global Security
is payable in accordance with the provisions of this Indenture.
Upon the exchange of a Security in global form for Securities in permanent
form, such Security in global form shall be cancelled by the Trustee. All
cancelled Securities held by the Trustee shall be
13
destroyed by the Trustee and a certificate of their destruction delivered to the
Company unless the Company directs, by Company Order, that the Trustee shall
cancel Securities and deliver a certificate of destruction to the Company.
Securities issued in exchange for a Security in global form pursuant to this
Section 2.08 hereof shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Securities as
instructed in writing by the Depositary.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Securities of any series during a period beginning at the opening
of 15 Business Days before any selection of Securities of such series to be
redeemed and ending at the close of business on the day of the mailing of the
relevant notice of redemption or (ii) to register the transfer of or exchange
any Security of any series so selected for redemption, in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
Section 2.09 Replacement Securities.
If any mutilated Security is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Security, the Company shall issue and the Trustee, upon receipt of
a Company Order, shall authenticate a replacement Security if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Security is
replaced. The Company may charge for its expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.
Section 2.10 Outstanding Securities.
The Securities of any series outstanding at any time are all the Securities
of such series authenticated by the Trustee except for those canceled by it,
those delivered to it for cancellation, those reductions in the interest in a
Global Security effected by the Trustee in accordance with the provisions
hereof, and those described in this Section as not outstanding. Except as set
forth in Section 2.11 hereof, a Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security. Subject
to the foregoing, only Securities outstanding at the time of such determination
shall be considered in any such determination (including, without limitation,
determinations pursuant to Articles 6 and 9 hereof). In addition, in determining
whether the Holders of the requisite principal amount of outstanding Securities
have given or concurred in any request, demand, authorization, direction,
notice, consent or waiver hereunder, (i) the principal amount of a Discount
Security that shall be deemed to be outstanding shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon acceleration of the maturity thereof pursuant to Section 6.02
14
hereof and (ii) the principal amount of a Security denominated in a foreign
currency or currencies shall be the dollar equivalent, as determined on the date
of original issuance of such Security, of the principal amount (or, in the case
of a Discount Security, the dollar equivalent on the date of original issuance
of such Security of the amount determined as provided in (i) above) of such
Security.
If a Security is replaced pursuant to Section 2.09 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Securities payable on that date, then on and after that date such
Securities shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.11 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of any series have concurred in any direction, waiver or consent,
Securities of such series owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, shall be considered as though not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities of that series
that the Trustee knows are so owned shall be so disregarded.
Section 2.12 Temporary Securities.
Until certificates representing Securities of any series are ready for
delivery, the Company may prepare and the Trustee, upon receipt of a Company
Order, shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of certificated Securities but may have variations
that the Company considers appropriate for temporary Securities and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities of the
same series in exchange for temporary Securities.
Holders of temporary Securities of any series shall be entitled to all of
the benefits of this Indenture as permanent Securities of the same series.
Section 2.13 Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy canceled Securities (subject to the record retention requirement
of the Exchange Act). Certification of the destruction of all canceled
Securities shall be delivered to the Company. The Company may not issue new
Securities to replace Securities that it has paid or that have been delivered to
the Trustee for cancellation.
15
Section 2.14 Payment of Interest.
Unless otherwise provided as contemplated by Section 2.03(a) hereof with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the person in whose name that Security (or one or more predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
If the Company defaults in a payment of interest on the Securities of any
series which is payable ("Defaulted Interest"), it shall pay the Defaulted
Interest in any lawful manner plus, to the extent lawful, interest payable on
the Defaulted Interest, to the Persons who are Holders of the series on a
subsequent Special Record Date, in each case at the rate provided in the
Securities of that series and in Section 4.01 hereof. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Securities of a series and the date of the proposed payment. The Company
shall fix or cause to be fixed each such Special Record Date and payment date,
provided that no such Special Record Date shall be less than 10 days prior to
the related payment date for such Defaulted Interest. At least 15 days before
the Special Record Date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company) shall mail
or cause to be mailed to Holders of the series a notice that states the Special
Record Date, the related payment date and the amount of such interest to be
paid.
Subject to the foregoing provisions of this Section 2.14 and Section 2.08
hereof, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 2.15 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and (except as otherwise
specified as contemplated by Section 2.03(a) hereof and subject to Sections 2.08
and 2.14 hereof) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Registrar will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Section 2.16 Computation of Interest.
Except as otherwise specified as contemplated by Section 2.03(a) hereof for
Securities of any series, (i) interest on any Securities which bear interest at
a fixed rate shall be computed on the basis of a 360-day year comprised of
twelve 30-day months and (ii) interest on any Securities which bear interest at
a variable rate shall be computed on the basis of the actual number of days in
an interest period divided by 360.
16
Section 2.17 CUSIP Numbers.
The Company, in issuing the Securities, may use "CUSIP" numbers (if then
generally in use) and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities of a series or as contained in any notice of
a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities of such series, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Right to Redeem; Notices to Trustee.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 2.03(a) hereof for Securities of any
series) in accordance with this Article 3. If the Company elects to redeem
Securities of any series, it shall furnish to the Trustee, at least 35 days (or
such shorter period as may be acceptable to the Trustee) but not more than 75
days before a redemption date, an Officers' Certificate setting forth (i) the
clause of this Indenture pursuant to which the redemption shall occur, (ii) the
Redemption Date, (iii) the principal amount of Securities of such series to be
redeemed, (iv) any other information necessary to identify the Securities of
such series to be redeemed and (v) the Redemption Price.
Section 3.02 Selection of Securities to Be Redeemed.
Unless otherwise specified as contemplated by Section 2.03(a) hereof with
respect to any series of Securities, if less than all of the Securities of a
series are to be redeemed or purchased in an offer to purchase at any time, the
Trustee will select the Securities to be redeemed or purchased among the Holders
of the Securities of that Series in compliance with the requirements of the
principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not so listed, on a pro rata basis, by lot or
in accordance with any other method the Trustee considers fair and appropriate.
In the event of partial redemption by lot, the particular Securities to be
redeemed shall be selected, unless otherwise provided herein, not less than 30
nor more than 60 days prior to the Redemption Date by the Trustee from the
outstanding Securities not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed. Unless otherwise
specified as contemplated by Section 2.03(a) hereof, Securities and portions of
Securities selected will be in amounts of $1,000 or whole multiples of $1,000.
Except as provided in the preceding sentence, provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities
called for redemption.
Section 3.03 Notice of Redemption to Holders.
Unless otherwise specified as contemplated by Section 2.03(a) hereof with
respect to any series of Securities, at least 30 days but not more than 60 days
before a Redemption Date, the Company shall mail or cause to be mailed, by first
class mail, a notice of redemption to each Holder whose Securities are to be
redeemed at its registered address.
The notice shall identify the Securities to be redeemed and shall state:
17
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the outstanding Securities of any series are to be
redeemed, the identification (and in the case of partial redemption, the
principal amount) of the particular Security to be redeemed;
(d) that, after the Redemption Date upon surrender of such Security, a new
Security or Securities in principal amount equal to the unredeemed portion shall
be issued upon cancellation of the original Security;
(e) the name and address of the Paying Agent;
(f) that Securities called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(g) that, unless the Company defaults in making such redemption payment,
interest, if any, on Securities called for redemption ceases to accrue on and
after the Redemption Date;
(h) the paragraph of the Securities and/or Section of this Indenture
pursuant to which the Securities called for redemption are being redeemed;
(i) that the redemption is for a sinking fund, if such is the case; and
(j) that no representation is made as to the correctness or accuracy of the
CUSIP number, if any, listed in such notice or printed on the Securities.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
shall have delivered to the Trustee, at least 45 days prior to the Redemption
Date (or such shorter period as may be acceptable to the Trustee), an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.
Notwithstanding the foregoing, a redemption notice may be mailed more than
60 days prior to the Redemption Date if the notice is issued in connection with
a defeasance of the Securities or satisfaction and discharge of this Indenture.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Securities called for redemption become irrevocably due and payable on the
Redemption Date at the Redemption Price. A notice of redemption may not be
conditional.
Section 3.05 Deposit of Redemption Price.
Prior to 12:00 noon (Eastern Standard Time) on the Redemption Date, the
Company shall deposit with the Trustee or with the Paying Agent money sufficient
to pay the Redemption Price of and accrued interest on all Securities of a
series to be redeemed on that date. The Trustee or the Paying Agent shall
promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the
18
Company in excess of the amounts necessary to pay the Redemption Price of, and
accrued interest on, all Securities to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on
and after the Redemption Date, interest shall cease to accrue on the Securities
or the portions of Securities called for redemption. If a Security is redeemed
on or after a Regular Record Date but on or prior to the related Interest
Payment Date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Security was registered at the close of business on such
Regular Record Date. If any Security called for redemption shall not be so paid
upon surrender for redemption because of the failure of the Company to comply
with the preceding paragraph, interest shall be paid on the unpaid principal
from the Redemption Date until such principal is paid, and to the extent lawful
on any interest not paid on such unpaid principal, in each case at the rate
provided in the Securities and in Section 4.01 hereof.
Section 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Security equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Securities.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Securities on the dates and in the manner provided in
the Securities. Principal, premium, if any, and interest shall be considered
paid on the date due if the Paying Agent, if other than the Company or a
Subsidiary thereof, holds as of 10:00 a.m. Eastern Standard Time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due.
Section 4.02 Maintenance of Office or Agency.
The Company shall maintain in each place of payment for any series of
Securities an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Securities of a
series may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Securities of such
series and this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The Company also may from time to time designate one or more other offices
or agencies where the Securities of a series may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
place of payment for Securities of any series for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
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With respect to any Global Security, and except as otherwise may be
specified for such Global Security as contemplated by Section 2.03(a) hereof,
the Corporate Trust Office for the Trustee shall be the place of payment where
such Global Security may be presented or surrendered for payment or for
registration of transfer or exchange, or where successor Securities may be
delivered in exchange therefore, provided, however, that any such payment,
presentation, surrender or delivery effected pursuant to the procedures of the
Depositary for such Global Security shall be deemed to have been effected at the
place of payment for such Global Security in accordance with the provisions of
this Indenture.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.04 hereof.
Section 4.03 Reports.
Whether or not required by the rules and regulations of the SEC, so long as
any Securities of any series are outstanding, the Company shall furnish to the
Holders of such series of Securities (i) all quarterly and annual financial
information that would be required to be contained in a filing with the SEC on
Forms 10-Q and 10-K if the Company were required to file such forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report thereon
by the Company's certified independent accountants and (ii) all current reports
that would be required to be filed with the SEC on Form 8-K if the Company were
required to file such reports, in each case, within the time periods specified
in the SEC's rules and regulations. In addition, whether or not required by the
rules and regulations of the SEC, the Company shall file a copy of all such
information and reports with the SEC for public availability within the time
periods specified in the SEC's rules and regulations (unless the SEC will not
accept such a filing) and make such information available to securities analysts
and prospective investors upon request. The Company shall at all times comply
with TIA 'SS' 314(a).
Section 4.04 Compliance Certificate.
(a) The Company and each Guarantor, if any, (to the extent that such
Guarantor is so required under the TIA) shall deliver to the Trustee, within 120
days after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Securities is prohibited or if such event has occurred,
a description of the event and what action the Company is taking or proposes to
take with respect thereto.
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
Unless otherwise specified as contemplated by Section 2.03(a) hereof, the
Company shall not, directly or indirectly: (1) consolidate or merge with or into
another Person (whether or not the Company
20
is the surviving corporation); or (2) sell, assign, transfer, convey or
otherwise dispose of all or substantially all of the properties or assets of the
Company and its Restricted Subsidiaries taken as a whole, in one or more related
transactions, to another Person; unless:
(a) either: (i) the Company is the surviving corporation; or (ii) the
Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, conveyance
or other disposition has been made is a corporation organized or existing
under the laws of the United States, any state of the United States or the
District of Columbia; or
(b) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or the Person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all the
obligations of the Company under the Securities and this Indenture pursuant
to a supplemental indenture reasonably satisfactory to the Trustee.
In addition, the Company may not, directly or indirectly, lease all or
substantially all of the properties or assets of the Company and its Restricted
Subsidiaries, taken as a whole, in one or more related transactions, to any
other Person. This Section 5.01 will not apply to a sale, assignment, transfer,
conveyance or other disposition of assets between or among the Company and any
of the Guarantors, as applicable.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
conveyance, transfer or other disposition of all or substantially all of the
properties or assets of the Company and its Restricted Subsidiaries, taken as a
whole in accordance with the provisions of Section 5.01 hereof, the successor
Person formed by such consolidation or into which the Company is merged or to
which such sale, assignment, transfer, conveyance or other disposition is made,
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
had been named as the Company therein. When a successor assumes all the
obligations of its predecessor under this Indenture and the Securities following
a consolidation or merger, or any sale, assignment, transfer, conveyance,
transfer or other disposition of 90% or more of the assets of the predecessor in
accordance with the foregoing provisions, the predecessor shall be released from
those obligations.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Unless otherwise specified as contemplated by Section 2.03(a) hereof with
respect to any series of Securities, an "Event of Default" occurs, with respect
to each series of Securities individually, if:
(a) the Company defaults in the payment when due of interest on the
Securities of such series and such default continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal of or
premium, if any, on the Securities of such series when the same becomes due and
payable at maturity, upon redemption or otherwise;
21
(c) the Company fails to comply with any of the provisions of Section 5.01
hereof if applicable to such series of Securities;
(d) the Company fails to observe or perform any other covenant or other
agreement in this Indenture applicable to such series of Securities or the
Securities of such series for 60 days after notice to the Company by the Trustee
or the Holders of at least 25% in aggregate principal amount of the Securities
of such series then outstanding voting as a single class;
(e) the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due;
(f) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary in an involuntary case;
(ii) appoints a custodian of the Company or any of its Restricted
Subsidiaries or for all or substantially all of the property of the Company
or any of its Restricted Subsidiaries that is a Significant Subsidiary; or
(iii) orders the liquidation of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days;
(g) except as permitted by this Indenture, any Security Guarantee relating
to such series of Securities is held in any final, non-appealable judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be in
full force and effect or any Guarantor relating to such series of Securities, or
any Person acting on behalf of any such Guarantor, shall deny or disaffirm its
obligations under such Guarantor's Security Guarantee (unless such Guarantor
could be released from its Guarantee in accordance with this Indenture and as
specified pursuant to Section 2.03(a) hereof); or
(h) any other Event of Default provided with respect to the Securities of
that series, which is specified in a supplemental indenture hereto or an
Officers' Certificate, in accordance with Section 2.03(a) hereof.
Section 6.02 Acceleration.
If any Event of Default (other than an Event of Default specified in clause
(e) or (f) of Section 6.01 hereof with respect to the Company) occurs and is
continuing, the Trustee or the Holders of at least
22
25% in principal amount of the then outstanding Securities of that series may
declare all the Securities of that series to be due and payable immediately.
Upon any such declaration, the Securities of that series shall become due and
payable immediately. Notwithstanding the foregoing, if an Event of Default
specified in clause (e) or (f) of Section 6.01 hereof occurs with respect to the
Company, all outstanding Securities of that series shall be due and payable
immediately without further action or notice. The Holders of a majority in
aggregate principal amount of the then outstanding Securities of a series by
written notice to the Trustee may on behalf of all of the Holders of such series
of Securities rescind an acceleration and its consequences if all existing
Events of Default (except nonpayment of principal, interest or premium that has
become due solely because of the acceleration) have been cured or waived.
Section 6.03 Other Remedies.
If an Event of Default with respect to a series of Securities occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal, premium, if any, 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 of a series or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Security of such series in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the
then outstanding Securities of a series by notice to the Trustee may on behalf
of the Holders of all of the Securities of such series waive an existing Default
or Event of Default and its consequences hereunder, except a continuing Default
or Event of Default in the payment of the principal of, premium, if any, or
interest on, the Securities of that series (including in connection with an
offer to purchase) (provided, however, that the Holders of a majority in
aggregate principal amount of the then outstanding Securities of a series may
rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration). Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in principal amount of the then outstanding
Securities of any series may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of such Securities or
that may involve the Trustee in personal liability.
Section 6.06 Limitation on Suits.
A Holder of any Security of any series may pursue a remedy with respect to
this Indenture or such series of Securities only if:
23
(a) the Holder of a Security of such series gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then outstanding
Securities of such series make a written request to the Trustee to pursue the
remedy;
(c) the Holder of a Security of such series or Holders of Securities of
such series offer and, if requested, provide to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal amount
of the then outstanding Securities of such series do not give the Trustee a
direction inconsistent with the request.
A Holder of any Security may not use this Indenture to prejudice the rights
of another Holder or to obtain a preference or priority over another Holder.
Section 6.07 Rights of Holders of Securities to Receive Payment and Convert.
Notwithstanding any other provision of this Indenture, the Holder of any
Security shall have the right to receive payment of principal of, premium, if
any, and interest on such Security, on or after the respective due dates
expressed in such Security (including in connection with an offer to purchase),
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 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest remaining unpaid on the Securities
of any series and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to 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 the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Securities of any series allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Securities of that
series), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian 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 for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be
24
denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders of Securities for amounts due and unpaid on the
Securities of any series for principal, premium, if any, and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities of that series for principal,
premium, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Securities pursuant to this Section 6.10.
Section 6.11 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 a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder of a Security of any
series pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Securities of any series.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default with respect to the Securities of any series has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) With respect to the Securities of any series, except during the
continuance of an Event of Default with respect to Securities of such series:
25
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) 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.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. 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 from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
26
(d) 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 the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company or any Guarantor, if applicable,
shall be sufficient if signed by an Officer of the Company or Guarantor, as
applicable.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders 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.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or any Affiliate
of the Company with the same rights it would have if it were not Trustee.
However, in the event that the Trustee acquires any conflicting interest, it
must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as Trustee or resign. Any Agent may do the same with like rights and
duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the
Securities or any other document in connection with the sale of the Securities
or pursuant to this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing with respect to a
series of Securities and if it is known to the Trustee, the Trustee shall mail
to Holders of Securities of such series a notice of the Default or Event of
Default within 90 days after it occurs. Except in the case of a Default or Event
of Default in payment of principal of, premium, if any, or interest on any
Security, the Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the notice is
in the interests of the Holders of the Securities.
Section 7.06 Reports by Trustee to Holders of the Securities.
Within 60 days after each ________ beginning with the ________ following
the date of this Indenture, and for so long as Securities of any series remain
outstanding, the Trustee shall mail to the Holders of the Securities of such
series a brief report dated as of such reporting date that complies with TIA
'SS' 313(a) (but if no event described in TIA 'SS' 313(a) has occurred within
the twelve months preceding the reporting date, no report need be transmitted).
The Trustee also shall comply with TIA 'SS' 313(b)(2). The Trustee also shall
transmit by mail all reports as required by TIA 'SS' 313(c).
A copy of each report at the time of its mailing to the Holders of
Securities shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Securities are listed in
27
accordance with TIA 'SS' 313(d). The Company shall promptly notify the Trustee
when the Securities are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. 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. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(e) or (f) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA 'SS' 313(b)(2) to the
extent applicable.
Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Securities of any series may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
28
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities of any
series may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding
Securities of any series may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder
for at least six months, fails to comply with Section 7.10 hereof, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA 'SS''SS' 310(a)(1), (2) and (5). The Trustee is subject to TIA 'SS'
310(b).
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Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA 'SS' 311(a), excluding any creditor
relationship listed in TIA 'SS' 311(b). A Trustee who has resigned or been
removed shall be subject to TIA 'SS' 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
Unless otherwise specified as contemplated by Section 2.03(a) hereof with
respect to Securities of a particular series, the Company may elect, at its
option, at any time, to have either Section 8.02 or 8.03 hereof be applied to
all outstanding Securities of any series designated pursuant to Section 2.03(a)
hereof as being defeasible (the "Defeased Securities") in accordance with any
additional requirements provided pursuant to Section 2.03(a) hereof and upon
compliance with the conditions set forth below in this Article 8. Any such
election shall be evidenced by a Board Resolution set forth in an Officers'
Certificate or in another manner specified as contemplated by Section 2.03(a)
hereof for such Securities.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option (if
any) to have this Section 8.02 applied to any Securities of any series, the
Company shall, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be deemed to have been discharged from its obligations with
respect to all outstanding Defeased Securities on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Defeased
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Defeased Securities and this Indenture (and the Trustee,
on demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Defeased Securities to receive solely from the trust fund under
Section 8.04 hereof, and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest on such Defeased
Securities when such payments are due, (b) the Company's obligations with
respect to such Defeased Securities under Article 2 and Section 4.01 hereof, (c)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
the Company's obligations in connection therewith and (d) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option (if
any) to have this Section 8.03 applied to any Securities of any series the
Company and, if applicable, each Guarantor shall, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, be released from its
obligations under Sections 4.03, 4.05 and 4.06 hereof and Articles 5 and 12
hereof and such other provisions as may be provided as contemplated by Section
2.03(a) hereof with respect to Securities of a particular series and with
respect to the outstanding Defeased Securities on and after the date the
conditions set forth in Section 8.04 hereof are satisfied (hereinafter,
"Covenant Defeasance"), and the Defeased Securities shall thereafter be deemed
not "outstanding" for the purposes of any direction,
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waiver, consent or declaration or act of Holders of such Defeased Securities
(and the consequences of any thereof) in connection with such covenants, but
shall continue to be deemed "outstanding" for all other purposes hereunder (it
being understood that such Defeased Securities shall not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Defeased Securities, the Company and, if applicable,
each Guarantor may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Defeased
Securities shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof
and Sections 6.01(c), (d) and (g) hereof shall not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to a series of outstanding Securities:
Unless otherwise specified as contemplated by Section 2.03(a) hereof with
respect to any series of Securities, in order to exercise either Legal
Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders, cash, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient to pay the principal
of, premium, if any, and interest on the outstanding Securities of such series
on the stated date for payment thereof or on the applicable redemption date, as
the case may be;
(b) in the case of an election under Section 8.02 hereof, the Company shall
have delivered to the Trustee an Opinion of Counsel confirming that (A) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date this Indenture was first executed, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred; and
(c) in the case of an election under Section 8.03 hereof, the Company shall
have delivered to the Trustee an Opinion of Counsel confirming that the Holders
of the outstanding Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant Defeasance
had not occurred.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding
Defeased Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Defeased Securities and this Indenture,
to the payment, either directly or through any Paying Agent (including the
Company acting as Paying Agent) as the Trustee may determine, to the Holders of
such
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Defeased Securities of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, 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 cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Defeased Securities.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Securities of a series and remaining unclaimed for two years
after such principal, and premium, if any, or interest has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such series of
Securities shall thereafter look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in The New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash or non-callable
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Defeased Securities shall
be revived and reinstated as though no deposit had occurred pursuant to Section
8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the
case may be; provided, however, that, if the Company makes any payment of
principal of, premium, if any, or interest on any Defeased Securities following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Defeased Securities to receive such payment from
the money held by the Trustee or Paying Agent.
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ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Securities.
Notwithstanding Section 9.02 hereof, the Company, the Guarantors, if any,
and the Trustee at any time and from time to time may amend this Indenture or
enter into one or more indentures supplemental hereto without the consent of any
Holder of a Security for any of the following purposes:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Securities in addition to or in place of
certificated Securities in a manner that does not materially adversely affect
any Holder;
(c) to provide for the assumption of the Company's or, if applicable, a
Guarantor's obligations to the Holders of the Securities or a series by a
successor pursuant to Article 5 or 11 hereof;
(d) to make any change that would provide any additional rights or benefits
to the Holders or that does not adversely affect the legal rights hereunder of
any Holder;
(e) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA;
(f) to add a Guarantor with respect to Securities of any series;
(g) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 7.08 hereof;
(h) to mortgage, pledge, hypothecate or grant a security interest in favor
of the Trustee for the benefit of the Holders of Securities of any series as
additional security for the payment and performance of the Company's or, if
applicable, a Guarantor's obligations herein in any property or assets;
(i) to add to, change or eliminate any of the provisions of this Indenture
(which addition, change or elimination may apply to one or more series of
Securities), provided that, any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the execution
of such supplemental indenture and entitled to the benefit of such provision nor
(ii) modify the rights of the Holder of any such Security with respect to such
provision or (B) shall become effective only when there is no such outstanding
Security; or
(j) to establish the form and terms of Securities of any series permitted
by Sections 2.01 and 2.03(a) hereof, respectively.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 7.02 hereof,
the Trustee shall join with the Company and, if applicable, the Guarantors in
the execution of any amended or supplemental Indenture authorized or permitted
by the terms of this Indenture and to make any further appropriate agreements
and stipulations that may be
33
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Securities.
Except as provided below in this Section 9.02, the Company and the Trustee
may amend this Indenture or the Securities of any series with the consent of the
Holders of at least a majority in principal amount of the Securities of such
series then outstanding voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, such
Securities), and, subject to Sections 6.04 and 6.07 hereof, any existing Default
or Event of Default with respect to a particular series of Securities (other
than a Default or Event of Default in the payment of the principal of, premium,
if any, or interest on such Securities, except a payment default resulting from
an acceleration that has been rescinded) or compliance with any provision of
this Indenture or such Securities may be waived with the consent of the Holders
of a majority in principal amount of the then outstanding Securities of such
series voting as a single class (including consents obtained in connection with
a tender offer or exchange offer for, or purchase of, such Securities).
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Securities as aforesaid, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company and, if applicable, the Guarantors in the execution of
such amended or supplemental Indenture unless such amended or supplemental
Indenture directly affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such amended or supplemental
Indenture.
It shall not be necessary for the consent of the Holders of Securities
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders of Securities affected thereby
a notice briefly describing the amendment, supplement or waiver. 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 amended or supplemental
indenture or waiver. Subject to Sections 6.04 and 6.07 hereof and except as
otherwise provided below in this Section 9.02, the Holders of a majority in
aggregate principal amount of the Securities of any series then outstanding
voting as a single class may waive compliance in a particular instance by the
Company with any provision of this Indenture or the Securities of such series.
However, without the consent of each Holder affected, an amendment or waiver
under this Section 9.02 may not (with respect to any Securities of such series
held by a non-consenting Holder):
(a) change the Stated Maturity of, the principal of, or any installment of
principal or interest on, any such Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon redemption
thereof or reduce the amount of principal of or premium, if any, on any such
Discount Security that would be due and payable upon a declaration of
acceleration of maturity thereof pursuant to Section 6.02 hereof, or change the
place of payment where, or change the coin or currency in which, any principal
of, or any installment of interest on, any such Security is payable, or impair
the right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
34
(b) reduce the percentage in principal amount of the outstanding Securities
of any series, the consent of whose Holders is required for any such amendment
or supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) with respect to the Securities of
such series provided for in this Indenture;
(c) modify any of the provisions of this Section 9.02 or Section 6.04 or
6.07 hereof, except to increase the percentage of outstanding Securities of such
series required for such actions to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each outstanding Security of a series affected thereby;
(d) release any applicable Guarantor from any of its obligations under its
Security Guarantee or this Indenture, except in accordance with the terms of
this Indenture; or
(e) change such other matters as may be specified pursuant to Section
2.03(a) hereof.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Securities of any
series shall be set forth in a amended or supplemental Indenture that complies
with the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder of a Security is a continuing consent by the Holder of a Security
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent is not made on any Security. However, any such Holder of a Security
or subsequent Holder of a Security may revoke the consent as to its Securities
if the Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.
Section 9.05 Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Security of a series thereafter authenticated. The
Company in exchange for all Securities of a series may issue and the Trustee
shall, upon receipt of a Company Order, authenticate new Securities of such
series that reflect the amendment, supplement or waiver. Failure to make the
appropriate notation or issue a new Security shall not affect the validity and
effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental Indenture until the Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon, in addition to the documents required by Section
13.04 hereof, an Officers' Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
35
Section 9.07 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article 9, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby, except to the extent otherwise set forth thereon.
ARTICLE 10.
SINKING FUNDS
Section 10.01 Applicability of Article.
The provisions of this Article 10 shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise specified as
contemplated by Section 2.03(a) hereof for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "Mandatory Sinking Fund
Payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "Optional Sinking
Fund Payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 10.02 hereof. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of the
Securities of such series.
Section 10.02 Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver outstanding Securities of a series with the
same issue date, interest rate and Stated Maturity (other than any previously
called for redemption) and (b) may apply as a credit Securities of a series with
the same issue date, interest rate and Stated Maturity which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part
of any mandatory sinking fund payment with respect to the Securities of such
series with the same issue date, interest rate and Stated Maturity; provided,
that such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 10.03 Redemption of Securities for Sinking Fund.
Not less than 60 days (or such shorter period as shall be acceptable to the
Trustee) prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 10.02
hereof and will also deliver to the Trustee any Securities to be so delivered.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.02 hereof and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 3.03 hereof. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 3.04 and 3.06 hereof.
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ARTICLE 11.
SECURITY GUARANTEES
Section 11.01 Applicability of this Article.
Except as otherwise specified as contemplated by Section 2.03(a) hereof,
the provisions of this Article 11 will be applicable to any series of Securities
which is to be guaranteed by one or more Guarantors.
Section 11.02 Guarantee
Subject to this Article 11, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of Securities of a
particular series as to which it is a Guarantor authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, irrespective of
the validity and enforceability of this Indenture, the Securities of such series
or the obligations of the Company hereunder or thereunder, that: (a) the
principal of, premium, if any, and interest on the Securities of such series
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and premium,
if any, and interest on the Securities of such series, if any, 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 (b) in case of any extension of time of
payment or renewal of any Securities of such series or any of such other
obligations, that same 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 of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
Subject to this Article 11, the Guarantors hereby, jointly and severally,
agree that their obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Securities of a series or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Securities of such series 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. Each 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 covenant that this Security Guarantee shall not be discharged except by
complete performance of the obligations contained in the Securities of such
series and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this
Security Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.
Each 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 guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Security Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided
37
in Article 6 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this
Security Guarantee. The Guarantors shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such right does not
impair the rights of the Holders under the Security Guarantee.
Section 11.03 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Securities of a series, each
Holder, hereby confirms that it is the intention of all such parties that the
Security Guarantee of such Guarantor not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to any Security Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor shall be limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article 11, result in the obligations of such Guarantor
under its Security Guarantee not constituting a fraudulent transfer or
conveyance.
Section 11.04 Release of Guarantors.
The Security Guarantee of a Guarantor with respect to any series of
Securities will be released under the circumstances specified for such series of
Securities pursuant to Section 2.03(a) hereof.
ARTICLE 12.
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge.
Except as otherwise contemplated by 2.03(a) hereof, this Indenture will
cease to be of further effect with respect to any series of Securities specified
by the Company, and the Trustee, at the expense of the Company, will execute
proper instruments acknowledging satisfaction and discharge of this Indenture as
to such series when:
(a) either:
(i) all Securities of such series that have been authenticated (except
lost, stolen or destroyed Securities of such series that have been replaced
or paid and Securities of such series for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company)
have been delivered to the Trustee for cancellation; or
(ii) all Securities of such series that have not been delivered to the
Trustee for cancellation have become due and payable by reason of the
mailing of a notice of redemption or otherwise or will become due and
payable within one year and the Company or, if applicable, any Guarantor
has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire indebtedness on the such
Securities not delivered to the Trustee for cancellation for principal,
premium, if any, and accrued interest to the date of maturity or
redemption;
38
(b) the Company or, if applicable, any Guarantor has paid or caused to be
paid all sums payable by it under this Indenture; and
(c) the Company or, if applicable, any Guarantor has delivered an Officers'
Certificate and an Opinion of Counsel to the Trustee stating that all conditions
precedent to satisfaction and discharge have been satisfied or waived.
Notwithstanding the satisfaction and discharge of this Indenture, if money
shall have been deposited with the Trustee pursuant to subclause (ii) of clause
(a) of this Section 12.01, the provisions of Sections 12.02 and 8.06 hereof
shall survive.
Section 12.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with
the Trustee pursuant to Section 12.01 hereof shall be held in trust and applied
by it, in accordance with the provisions of the Securities of a series and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
If the Trustee or Paying Agent is unable to apply any money or Government
Securities in accordance with Section 12.01 hereof by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations and, if applicable, any Guarantor's obligations under this
Indenture and the Securities of such series shall be revived and reinstated as
though no deposit had occurred pursuant to Section 11.01 hereof; provided that
if the Company has made any payment of principal of, premium, if any, or
interest on any Securities of such series because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
Securities of such series to receive such payment from the money or Government
Securities held by the Trustee or Paying Agent.
ARTICLE 13.
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties shall control. If any
provision of this Indenture modifies or excludes any provision of the TIA that
may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or excluded, as the case may be.
Section 13.02 Notices.
Any notice or communication by the Company, any Guarantor or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
39
If to the Company and/or any Guarantor:
Omnicare, Inc.
100 East RiverCenter Boulevard
Covington, Kentucky 41011
Telecopier No.: (859) 392-3360
Attention: General Counsel
With a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Telecopier No.: (212) 259-6333
Attention: Morton A. Pierce, Esq.
If to the Trustee:
[_____________]
[_____________]
[_____________]
[_____________]
Telecopier No.: [_____________]
Attention: [_____________]
The Company, any Guarantor or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication also shall be so mailed to any
Person described in TIA 'SS' 313(c), to the extent required by the TIA.
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.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
Section 13.03 Communication by Holders of Securities with Other Holders of
Securities.
Holders may communicate pursuant to TIA 'SS' 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA 'SS' 312(c).
Section 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 13.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied or waived; and
40
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 13.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied or waived.
Section 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA 'SS' 314(a)(4)) shall comply with the provisions of TIA
'SS' 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has read
such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she 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
satisfied or waived; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been satisfied or waived.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company may be based
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion or
representations is based are erroneous. Any such certificate or opinion of
counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 13.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
41
Section 13.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, shall have any liability
for any obligations of the Company or such Guarantor under the Securities, the
Security Guarantees, this Indenture or for any claim based on, in respect of, or
by reason of, such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Securities.
Section 13.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE SECURITIES, WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 13.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 13.10 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. All agreements of each applicable Guarantor in this Indenture
shall bind its successors, except as otherwise provided pursuant to Section
12.05 hereof.
Section 13.11 Severability.
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 13.12 Counterpart 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 13.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table 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 of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
42
SIGNATURES
Dated as of [__________]
OMNICARE, INC.
By:
------------------------------------
Name:
Title:
Attest:
- --------------------------------
Name:
Title:
[______________]
By:
------------------------------------
Name:
Title:
Attest
- --------------------------------
Authorized Signatory
Date:
43
EXHIBIT A
[Face of Security]
- --------------------------------------------------------------------------------
CUSIP ____________
[TITLE OF SECURITIES]
No. ___ $____________
OMNICARE, INC.
promises to pay to ______________________________________ or registered assigns,
the principal sum of __________________________________________________________
Interest Payment Dates [_________] and [__________], commencing on [__________]
Record Dates: [___________] and [____________]
Dated: _______________, ____
OMNICARE, INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
This is one of the Securities referred to
in the within-mentioned Indenture:
[______________],
as Trustee
By:
--------------------------------------
Authorized Signatory
- --------------------------------------------------------------------------------
A-1
[Back of Security]
[TITLE OF SECURITIES]
[Insert the Global Security Legend, if applicable pursuant to the provisions of
this Indenture]
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder]
Capitalized terms used herein shall have the meanings assigned to them in
this Indenture referred to below unless otherwise indicated.
1. Interest.
Omnicare, Inc., a Delaware corporation (herein the "Company" which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _____________________, or registered
assigns, the principal sum of _________ [Dollars] [if other than Dollars,
substitute other currency units] on ________, _____ [if the Security is to bear
interest prior to Stated Maturity, insert -- , and to pay interest thereon from
_______________ or from the most recent Interest Payment Date to which interest
has been paid or duly provided for], [semiannually] [if other than semi-annual
interest at a fixed rate, insert frequency of payment and payment dates] on
_______ and _______ in each year, commencing ___________, and at the Stated
Maturity thereof, at [if the Security is to bear interest at a fixed rate,
insert -- the rate of __% per annum], [if the Security is to bear interest at a
rate determined with reference to one or more formula, refer to description
index below] until the principal hereof is paid or made available for payment]
[if applicable, insert -- , and (to the extent that the payment of such interest
shall be legally enforceable) at [if the Security is to bear interest at a fixed
rate, insert -- the rate of % per annum on any overdue principal and premium and
on any overdue installment of interest from the dates such amounts are due until
they are paid or made available for payment]. Interest shall be computed on the
basis of [a 360-day year of twelve 30-day months] [if another basis of
calculating interest is to be different, insert a description of such method.]
2. Method of Payment.
The Company will pay interest on the Securities on each [__________] and
[__________] to the Persons who are registered Holders of the relevant
Securities at the close of business on the [__________] or [__________] next
preceding the Interest Payment Date, even if such Securities are canceled after
such record date and on or before such Interest Payment Date, except as provided
in Section 2.14 of this Indenture with respect to Defaulted Interest. The
Securities will be payable as to principal, premium, if any, and interest at the
office or agency of the Company maintained for such purpose in [__________], [if
applicable, insert --; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the list provided by the
Company to the Registrar and provided, further, that if this Security is a
Global Security, payment may be made pursuant to the applicable procedures of
the Depositary as permitted in said Indenture]. Such payment shall be in such
coin or currency of [the United States of America] [insert other currency or
currency unit, if applicable] as at the time of payment is legal tender for
payment of public and private debts.
3. Paying Agent and Registrar.
Initially, the Trustee under this Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
A-2
4. Indenture.
This Security is one of a duly authorized issue of Securities of the
Company issued and to be issued in one or more series under an Indenture, dated
as of ________, _____ (herein called the "Indenture"), between the Company and
_______________, as Trustee (herein called the "Trustee" which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The terms of the
Securities include those stated in this Indenture and those made part of this
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code 'SS' 77aaa-77bbbb). The Securities are subject to all such terms, and
Holders are referred to this Indenture and such Act for a statement of such
terms. To the extent any provision of this Security conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
5. Redemption.
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days notice by mail, [if applicable, insert --
(1) on _________ in any year commencing with the year _____ and ending with the
year _____ through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after ________, _____], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): if redeemed [if applicable insert -- on or
before ________, ___%, and if redeemed] during the 12-month period beginning of
the ________ years indicated,
Year Redemption Price Year Redemption Price
and thereafter at a Redemption Price equal to ______% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days notice by mail, (1) on ________ in any
year commencing with the year _____ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ____________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ___________ of the years indicated,
Redemption Price for Redemption
Redemption Price for Redemption Otherwise Than Through Operation of the
Year Through Operation of the Sinking Fund Sinking Fund
---- ------------------------------------- ---------------------------------------
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and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The sinking fund for this series provides for the
redemption on ________ in each year beginning with the year ____ and ending with
the year _____ of [if applicable, insert -- not less than $_____________
("mandatory sinking fund") and not more than] $___________ aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [mandatory] sinking fund payments
may be credited against subsequent [if applicable, insert -- mandatory] sinking
fund payments otherwise required to be made [if applicable, insert -- in the
inverse order in which they become due].]
[If applicable, insert -- The Securities are subject to redemption, as a
whole at any time or in part from time to time, at the sole election of the
Company, upon not less than 30 or more than 60 days notice by mail to the
Trustee at a Redemption Price equal to $____.]
[If applicable, insert -- The Holder of this Security shall have the right
to require the Company to pay this Security in full on ____________, __ by
giving the Company or the Registrar written notice of the exercise of such right
not less than 30 or more than 60 days prior to such date.]
[If the Security is subject to redemption, insert -- In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- This Security is not subject to redemption prior
to maturity.]
6. Denominations, Transfer, Exchange.
[If applicable, insert -- The Securities of this series are issuable only
in registered form without coupons in denominations of $___________ and any
integral multiple thereof.] As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same. A Holder may register the transfer or exchange of the Security as
provided in the Indenture and subject to certain limitations therein set forth.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
[If applicable, insert -- The Securities of this series will be represented
by one or more Global Securities registered in the name of ____________, (the
"Depositary"), or a nominee of the Depositary. So long as the Depositary, or its
nominee, is the registered holder and owner of this Global Security, the
Depositary or such nominee, as the case may be, will be considered the sole
owner and holder of the Securities for all purposes under the Indenture. The
Global Security may be transferred, in whole and not in part, only to the
Depositary or another nominee of the Depositary. The Depositary will credit, on
its book-entry registration and transfer system, the respective principal
amounts of the Securities represented by such Global Security to the accounts of
institutions that have accounts with the Depositary or its nominee
("participants"). Ownership of beneficial interests in a Global Security will be
shown on, and the transfer of those ownership interests will be effected
through, records maintained by the Depositary
A-4
(with respect to participants' interests) and such participants (with respect to
the owners of beneficial interests in such Global Security).]
[If applicable, insert -- The Securities represented by this Global
Security are exchangeable for Securities in permanent form of like tenor as such
Global Security in denominations of $1,000 and in any greater amount that is an
integral multiple thereof if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Global Security or if at
any time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (ii) the Company in its discretion
at any time determines not to have all of the Securities of this series
represented by the Global Security and notifies the Trustee thereof, or (iii) an
Event of Default has occurred and is continuing with respect to the Securities.
Any Security that is exchangeable pursuant to the preceding sentence is
exchangeable only for Securities of this series.]
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
7. Persons Deemed Owners.
The registered Holder of a Security may be treated as its owner for all
purposes.
8. Amendment, Supplement and Waiver.
Subject to certain exceptions, this Indenture and the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the then outstanding Securities of each series affected
by such amendment or supplement and any existing default or compliance with any
provision may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Securities of each series affected by
such waiver. Without the consent of any Holder of a Securities of each series
affected by such amendment or supplement, this Indenture and the Securities may
be amended or supplemented to, among other things, (a) cure any ambiguity,
defect or inconsistency; (b) provide for uncertificated Securities in addition
to or in place of certificated Securities; (c) provide for the assumption of the
Company's obligations to Holders of the Securities in case of a merger or
consolidation; (d) to make any change that would provide any additional rights
or benefits to the Holders of Securities or that does not adversely affect the
legal rights under the Indenture of any Holder; (e) to comply with the
requirements of the SEC in order to effect or maintain the qualification of this
Indenture under the Trust Indenture Act; (f) to allow any Guarantor to execute a
supplemental indenture to this Indenture; (g) evidence or provide for acceptance
of appointment of a successor Trustee; (h) mortgage, hypothecate or grant a
security interest in favor of the Trustee for the benefit of the Holders of
Securities of any series as additional security for the payment and performance
of the Company's or, if applicable, the Guarantor's obligations herein in any
property or assets; or (i) add to, change or eliminate any of the provisions of
this Indenture (which addition, change or elimination may apply to one or more
series of Securities), provided that, any such addition, change or elimination
set forth in clause (i) above (A) shall neither (x) apply to any Security of any
series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (y) modify the rights of the
Holder of any such Security with respect to such provision or (B) shall become
effective only when there is no such outstanding Security.
9. Defaults and Remedies.
Events of Default include: (a) default for 30 days in the payment when due
of interest on the Securities; (b) default in payment when due of principal of
or premium, if any, on the Securities; (c)
A-5
failure by the Company to comply with Section 5.01 of the Indenture; (d) failure
by the Company for 60 days to comply with certain other agreements in this
Indenture or the Securities; (e) certain events of bankruptcy or insolvency with
respect to the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary; and (f) except as permitted by the Indenture, any
applicable Security Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect or any Guarantor or any Person acting on its behalf shall deny or
disaffirm its obligations under such Guarantor's Security Guarantee. If any
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Securities may declare all
the Securities to be due and payable. Notwithstanding the foregoing, in the case
of an Event of Default arising from certain events of bankruptcy or insolvency
involving the Company, all outstanding Securities will become due and payable
without further action or notice. Holders may not enforce this Indenture or the
Securities except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Securities may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Securities notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment
of principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the
Securities then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Securities waive any existing Default or Event of Default
and its consequences under this Indenture except a continuing Default or Event
of Default in the payment of interest on, or the principal of, the Securities.
The Company is required to deliver to the Trustee annually a statement regarding
compliance with this Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
10. Trustee Dealings with Company.
The Trustee, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its Affiliates,
and may otherwise deal with the Company or its Affiliates, as if it were not the
Trustee.
11. No Recourse Against Others.
A director, officer, employee, incorporator or stockholder, of the Company,
as such, shall not have any liability for any obligations of the Company or the
Guarantors under the Securities or this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
12. [If applicable, insert - Guarantees.
The payment by the Company of the principal of and interest on the Security
is fully and unconditionally guaranteed on a joint and several basis by each of
the Guarantors on the terms set forth in the Indenture.]
13. Authentication.
This Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
14. Abbreviations.
A-6
Customary abbreviations may be used in the name of a Holder or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
15. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Securities or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of this Indenture. Requests may be made to:
Omnicare, Inc.
100 East RiverCenter Boulevard
Covington, Kentucky 41011
Attention: General Counsel
A-7
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to: ______________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date: _______________
Your Signature:
----------------------------------
(Sign exactly as your name appears on
the face of this Security)
Signature Guarantee*:
-------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY*
The following exchanges of a part of this Global Security for an interest
in another Global Security or for a Definitive Security, or exchanges of a part
of another Global Security or Definitive Security for an interest in this Global
Security, have been made:
Principal Amount of
this Global Security
Amount of decrease in Amount of increase in following such Signature of authorized
Principal Amount of Principal Amount of decrease officer of Trustee or
Date of Exchange this Global Security this Global Security (or increase) Security Custodian
- ---------------- --------------------- --------------------- -------------------- -----------------------
- ----------
* This schedule should be included only if the Security is issued in global
form.
A-9