Exhibit 4.5
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L-3 COMMUNICATIONS HOLDINGS, INC.
ISSUER
and
THE BANK OF NEW YORK
TRUSTEE
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INDENTURE
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DATED AS OF ________, 2002
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FORM OF L-3 HOLDINGS INDENTURE
Exhibit 4.5
L-3 COMMUNICATIONS HOLDINGS, INC.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of ________, 2002
TRUST INDENTURE ACT SECTION INDENTURE SECTION
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ss.310 (a)(1)........................................ 6.09
(a)(2)........................................ 6.09
(a)(3)........................................ Not Applicable
(a)(4)........................................ Not Applicable
(b)........................................... 6.08
6.10
ss.311 (a)........................................... 6.13(a)
(b)........................................... 6.13(b)
ss.312 (a)........................................... 7.01
7.02(a)
(b)........................................... 7.02(b)
(c)........................................... 7.02(c)
ss.313 (a)........................................... 7.03(a)
(b)........................................... 7.03(b)
(c)........................................... 7.03(a)
7.03(b)
(d)........................................... 7.03(c)
ss.314 (a)........................................... 7.04
(c)(1)........................................ 1.02
(c)(2)........................................ 1.02
(c)(3)........................................ Not Applicable
(d)........................................... Not Applicable
(e)........................................... 1.02
ss.315 (a)........................................... 6.01(a)
(b)........................................... 6.02
(c)........................................... 6.01(b)
(d)........................................... 6.01(c)
(d)(1)........................................ 6.01(c)
(d)(2)........................................ 6.01(c)(2)
(d)(3)........................................ 6.01(c)(3)
(e)........................................... 5.09
ss.316 (a)........................................... 5.08
(a)(1)(A)..................................... 5.08
(a)(1)(B)..................................... 5.02
5.08
(a)(2)........................................ Not Applicable
(b)........................................... 5.05
ss.317 (a)(1)........................................ 5.03
(a)(2)........................................ 5.03
(b)........................................... 10.03
ss.318 (a)........................................... 1.07
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Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS
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PARTIES...........................................................................................................1
RECITALS..........................................................................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...............................................1
SECTION 1.01. Definitions..............................................................................1
"Act"..................................................................................................2
"Affiliate" ...........................................................................................2
"Authenticating Agent".................................................................................2
"Board of Directors"...................................................................................2
"Board Resolution".....................................................................................2
"Business Day".........................................................................................2
"Commission"...........................................................................................2
"Company"..............................................................................................2
"Company Request" and "Company Order"..................................................................2
"Corporate Trust Office"...............................................................................2
"Covenant Defeasance Option"...........................................................................3
"Default"..............................................................................................3
"Defaulted Interest"...................................................................................3
"Discharged"...........................................................................................3
"Eligible Guarantors"..................................................................................3
"Event of Default".....................................................................................3
"Exchange Act".........................................................................................3
"Global Security"......................................................................................3
"Guarantee"............................................................................................3
"Guarantor"............................................................................................3
"Holder" ..............................................................................................3
"Indenture"............................................................................................3
"interest" ............................................................................................3
"Interest Payment Date"................................................................................3
"Legal Defeasance Option"..............................................................................3
"Maturity".............................................................................................4
"Officer" .............................................................................................4
"Officers' Certificate"................................................................................4
"Opinion of Counsel"...................................................................................4
"Original Issue Discount Security".....................................................................4
"Outstanding"..........................................................................................4
"Paying Agent".........................................................................................5
"Person" .........................................................................................5
"Predecessor Security".................................................................................5
"Redemption Date"......................................................................................5
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"Redemption Price".....................................................................................5
"Responsible Officer"..................................................................................5
"Securities"...........................................................................................5
"Security Register" and "Security Registrar"...........................................................5
"Significant Subsidiary"...............................................................................6
"Special Record Date"..................................................................................6
"Stated Maturity"......................................................................................6
"Subsidiary"...........................................................................................6
"Trustee"..............................................................................................6
"Trust Indenture Act"..................................................................................6
"United States"........................................................................................6
"U.S. Depositary"......................................................................................6
"U.S. Government Obligations"..........................................................................6
"Voting Stock".........................................................................................6
"Yield to Maturity" ...................................................................................6
SECTION 1.02. Compliance Certificates and Opinions.....................................................7
SECTION 1.03. Form of Documents Delivered to Trustee...................................................7
SECTION 1.04. Acts of Holders..........................................................................8
SECTION 1.05. Notices, etc., to Trustee and Company....................................................8
SECTION 1.06. Notice to Holders; Waiver................................................................9
SECTION 1.07. Conflict with Trust Indenture Act........................................................9
SECTION 1.08. Effect of Headings and Table of Contents.................................................9
SECTION 1.09. Successors and Assigns...................................................................9
SECTION 1.10. Separability Clause......................................................................9
SECTION 1.11. Benefits of Indenture...................................................................10
SECTION 1.12. Governing Law...........................................................................10
SECTION 1.13. Legal Holidays..........................................................................10
SECTION 1.14. Indenture and Securities Solely Corporate Obligations...................................10
SECTION 1.15. No Security Interest Created............................................................10
ARTICLE TWO SECURITY FORMS....................................................................................10
SECTION 2.01. Forms Generally.........................................................................10
SECTION 2.02. Form of Trustee's Certificate of Authentication.........................................11
SECTION 2.03. Securities in Global Form...............................................................11
ARTICLE THREE THE SECURITIES .................................................................................11
SECTION 3.01. Amount Unlimited; Issuable in Series....................................................11
SECTION 3.02. Denominations...........................................................................13
SECTION 3.03. Authentication and Dating...............................................................13
SECTION 3.04. Execution of Securities.................................................................14
SECTION 3.05. Exchange and Registration of Transfer of Securities.....................................15
SECTION 3.06. Mutilated, Destroyed, Lost or Stolen Securities.........................................15
SECTION 3.07. Temporary Securities....................................................................16
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SECTION 3.08. Payment of Interest; Interest Rights Preserved..........................................18
SECTION 3.09. Persons Deemed Owners...................................................................19
SECTION 3.10. Cancellation............................................................................19
SECTION 3.11. Computation of Interest.................................................................19
SECTION 3.12. CUSIP Numbers...........................................................................20
ARTICLE FOUR SATISFACTION AND DISCHARGE.......................................................................20
SECTION 4.01. Satisfaction and Discharge of Indenture.................................................20
SECTION 4.02. Application of Trust Money..............................................................21
ARTICLE FIVE REMEDIES.........................................................................................21
SECTION 5.01. Events of Default.......................................................................21
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment......................................22
SECTION 5.03. Payment of Securities on Default; Suit Therefor.........................................24
SECTION 5.04. Application of Moneys Collected by Trustee..............................................25
SECTION 5.05. Proceedings by Holders..................................................................26
SECTION 5.06. Proceedings by Trustee..................................................................26
SECTION 5.07. Remedies Cumulative and Continuing......................................................26
SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority of Holders..................27
SECTION 5.09. Undertaking to Pay Costs................................................................27
ARTICLE SIX THE TRUSTEE ......................................................................................28
SECTION 6.01. Certain Duties and Responsibilities.....................................................28
SECTION 6.02. Notice of Defaults......................................................................29
SECTION 6.03. Certain Rights of Trustee...............................................................29
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities..................................30
SECTION 6.05. May Hold Securities.....................................................................31
SECTION 6.06. Money Held in Trust.....................................................................31
SECTION 6.07. Compensation and Reimbursement..........................................................31
SECTION 6.08. Disqualification; Conflicting Interests.................................................32
SECTION 6.09. Corporate Trustee Required; Eligibility.................................................32
SECTION 6.10. Resignation and Removal; Appointment of Successor.......................................32
SECTION 6.11. Acceptance of Appointment by Successor..................................................34
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.............................35
SECTION 6.13. Preferential Collection of Claims Against Company.......................................35
SECTION 6.14. Appointment of Authenticating Agent.....................................................38
ARTICLE SEVEN HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY...............................................40
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders...............................40
SECTION 7.02. Preservation of Information: Communications to Holders.................................40
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SECTION 7.03. Reports by Trustee......................................................................41
SECTION 7.04. Reports by Company......................................................................43
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE................................................44
SECTION 8.01. Consolidations and Mergers of Company and Conveyances Permitted Subject to Certain
Conditions..............................................................................44
SECTION 8.02. Rights and Duties of Successor Corporation..............................................44
SECTION 8.03. Officers' Certificate and Opinion of Counsel............................................45
ARTICLE NINE SUPPLEMENTAL INDENTURES..........................................................................45
SECTION 9.01. Supplemental Indentures without Consent of Holders......................................45
SECTION 9.02. Supplemental Indentures with Consent of Holders.........................................47
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures..................48
SECTION 9.04. Notation on Securities..................................................................48
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee................48
ARTICLE TEN COVENANTS ......................................................................................48
SECTION 10.01. Payment of Principal and Interest.......................................................48
SECTION 10.02. Maintenance of Office or Agency.........................................................48
SECTION 10.03. Money for Security Payments to be Held in Trust.........................................49
SECTION 10.04. Payment of Taxes and Other Claims.......................................................50
SECTION 10.05. Maintenance of Properties...............................................................50
SECTION 10.06. Statement as to Default.................................................................50
SECTION 10.07. Corporate Existence.....................................................................51
SECTION 10.08. Waiver of Certain Covenants.............................................................51
SECTION 10.09. Calculation of Original Issue Discount..................................................51
ARTICLE ELEVEN REDEMPTION OF SECURITIES.......................................................................51
SECTION 11.01. Applicability of Article...............................................................51
SECTION 11.02. Notice of Redemption; Selection of Securities..........................................51
SECTION 11.03. Payment of Securities Called for Redemption............................................52
ARTICLE TWELVE SINKING FUNDS..................................................................................53
SECTION 12.01. Applicability of Article...............................................................53
SECTION 12.02. Satisfaction of Mandatory Sinking Fund Payments with Securities........................53
SECTION 12.03. Redemption of Securities for Sinking Fund..............................................53
ARTICLE THIRTEEN HOLDERS' MEETINGS............................................................................54
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SECTION 13.01. Purposes of Meetings...................................................................54
SECTION 13.02. Call of Meetings by Trustee............................................................55
SECTION 13.03. Call of Meetings by Company or Holders.................................................55
SECTION 13.04. Qualifications for Voting..............................................................55
SECTION 13.05. Regulations ...........................................................................55
SECTION 13.06. Voting ................................................................................56
SECTION 13.07. Revocation by Holders..................................................................57
SECTION 13.08. No Delay ..............................................................................57
SECTION 13.09. Action by Holders......................................................................57
ARTICLE FOURTEEN DEFEASANCE...................................................................................58
SECTION 14.01. Applicability of Article...............................................................58
SECTION 14.02. Defeasance Upon Deposit of Moneys or U.S. Government Obligations.......................58
SECTION 14.03. Deposited Moneys and U.S. Government Obligations to Be Held in Trust...................59
SECTION 14.04. Repayment to Company...................................................................60
v
FORM OF INDENTURE, dated as of ________, 2002 between L-3
Communications Holdings, Inc., a Delaware corporation (hereinafter called the
"Company"), and The Bank of New York, a New York banking corporation,
(hereinafter called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or more
series (herein called the "Securities"), as in this Indenture provided, up to
such principal amount or amounts as may from time to time be authorized in or
pursuant to one or more Board Resolutions; and
WHEREAS, all things necessary to make this Indenture a valid and
legally binding agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles which are generally
accepted at the date or time of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
2
"Act" when used with respect to any Holder has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" a nd "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 6.14.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of that board or any director or directors and/or
officer or officers of the Company to whom that board or committee shall have
duly delegated its authority.
"Board Resolution" means (1) 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, or (2) a certificate signed by the director or directors and/or
officer or officers to whom the Board of Directors or any duly authorized
committee of that board shall have duly delegated its authority, in each case
delivered to the T rustee for the Securities of any series.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
are authorized or required by law or executive order to be closed.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman of the Board,
the President or a Vice President (any reference to a Vice President of the
Company herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or a word or words added before or after
the title "Vice President"), and by the Chief Financial Officer, Treasurer, an A
ssistant Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Corporate Trust Office" of the Trustee means the principal corporate
trust office of the Trustee at which at any particular time its corporate trust
business shall be principally administered, which office as of the date hereof
is located at 101 Barclay Street, Floor 21 West, New York, New York 10286,
Attention: Corporate Trust Administration.
3
"Covenant Defeasance Option" has the meaning specified in Section
14.02.
"Default" means an event which is, or after notice or lapse of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.08.
"Discharged" has the meaning specified in Section 14.02.
"Eligible Guarantors" means the Company's domestic Subsidiaries.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Security" means a Security evidencing all or part of a series
of Securities, including, without limitation, any temporary or permanent Global
Securities.
"Guarantee" means each unconditional guarantee by an Eligible Guarantor
of Securities of any series.
"Guarantor" has the meaning specified in Section 3.01.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the form and terms of particular series of Securities
established as contemplated hereunder; provided, however, that if at any time
more than one Person is acting as Trustee under this instrument, "Indenture"
shall mean with respect to any one or more series of Securities for which such
Person is Trustee, this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such person is Trustee
established as contemplated by Section 3.01, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"interest" when used with respect to non-interest bearing Securities
means interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Security (in the case of an interest-bearing Security).
"Legal Defeasance Option" has the meaning specified in Section 14.02.
4
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officer" of the Company means the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Financial Officer, the Treasurer,
the Controller, any Vice President or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Chief Financial
Officer, the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be counsel for the
Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 5.02.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
aggregated in trust by the Company (if the Company shall act as its own
Paying Agent), for the Holders of such Securities, provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture;
provided, however, that in determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee established to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor.
5
In determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purpose shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of the acceleration of the
maturity thereof pursuant to Section 5.02.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof, and shall include any syndicate or group that would be deemed to be a
person under Section 13(d)(3) of the Exchange Act.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Redemption Date" when used with respect to any Security to be redeemed
means the date fixed for such redemption by or pursuant to the Board Resolution
or supplemental indenture establishing the series of Securities of which the
Security to be redeemed is a member.
"Redemption Price" when used with respect to any Security to be
redeemed means the price at which it is to be redeemed pursuant to the Board
Resolution or supplemental indenture establishing the series of Securities of
which the Security to be redeemed is a member.
"Regular Record Date" for the interest payable on any Interest Payment
Date (in the case of an interest-bearing Security) means such date or dates as
may be fixed for such purpose in the Board Resolution or supplemental indenture
establishing the series of Securities of which the Security is a member.
"Responsible Officer" when used with respect to the Trustee means any
officer in the Corporate Trust Office of the Trustee and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this instrument, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this instrument and shall more particularly mean
Securities authentic ated and delivered under this instrument, exclusive,
however of Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" , have the meanings
specified in Section 3.05.
6
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" within the meaning of Rule 405 under the Securities Act of 1933, as
amended.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.08.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more Subsidiaries, or by the Company and one or more Subsidiaries. For the
purposes of this definition only, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee; provided, however, that if at any
time there is more than one such person, "Trustee" as used with respect to the
Securities of any series shall mean only the Trustee with respect to Securities
of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
by the Trust Indenture Reform Act of 1990, as in force at the date as of which
this instrument was executed, except as provided in Section 9.03.
"United States" means the United States excluding its territories and
possessions.
"U.S. Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto, which
shall in either case be designated by the Corporation pursuant to Section 3.01,
until a successor U.S. Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "U.S. Depositary" shall
mean or include each Person who is then a U.S. Depositary hereunder, and if at
any time there is more than one such Person, "U.S. Depositary" as used with
respect to the Securities of any series shall mean the U.S. Depositary with
respect to the Securities of that series.
"U.S. Government Obligations" has the meaning specified in Section
14.02.
"Voting Stock" of a corporation means stock of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such corporation
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
"Yield to Maturity" means the yield to maturity, calculated at the time
of issuance of a series of Securities or, if applicable, at the most recent
redetermination of interest on such series and calculated in accordance with
accepted financial practice.
7
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall,
upon the request of the Trustee, furnish to the Trustee (1) an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and (2) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate (other than certificates provided pursuant to Section
10.06) or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate of 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 matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or association or a member of a
partnership or an official of a public or governmental body, on behalf of such
corporate, association, partnership, or public or governmental body or by a
fiduciary, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee, any Security Registrar, any
Paying Agent, any Authenticating Agent or the Company in reliance thereon,
whether or not notation of such action is mad e upon such Securities.
SECTION 1.05. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if in writing and mailed,
first-class postage prepaid, to the Trustee addressed to it at its
Corporate Trust Office;
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(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at 600
Third Avenue, 35th Floor, New York, New York 10016, Attention: Vice
President-Finance, or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Section 310 through 317, inclusive, of the Trust Indenture Act
through the operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (other than the parties hereto, any Security Registrar,
any Paying Agent, any Authenticating Agent, and their successors hereunder, and
the Holders of Securities) any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Securities shall be governed by, and construed
in accordance with, the laws of the State of New York.
SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Security) payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, and no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
SECTION 1.14. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of principal of or interest on any Security
or for any claim based on any Security or this Indenture shall be had against
any director or officer or stockholder, past, present or future, of the Company
or any other obligor with respect to the Securities. Any such claim against any
such Person is expressly waived as a condition of, and as consideration for, the
execution and delivery of this Indenture and the issue of the Securities.
SECTION 1.15. No Security Interest Created.
Nothing in this Indenture or in the Securities, expressed or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect, in any jurisdiction where property of the Company or its Subsidiaries is
located.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally. The Securities of each series shall be
in substantially such form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate 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 p laced
thereon as may be required to comply with any law or with any rules made
pursuant thereto or with any 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.
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The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities 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.
The Bank of New York,
as Trustee
By
----------------------------------
Authorized Signatory
Dated:
------------------------------
SECTION 2.03. Securities in Global Form. If any Security of a series
is issuable in global form, such Global Security may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee and in such manner as shall be specified in
such Global Security. Any instructions by the Company with respect to a Global
Security, after its initial issuance, shall be in writing but need not comply
with Section 1.02.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series,
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(1) the title of the Securities of the series, including CUSIP
Numbers (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 Section 3.05, 3.06, 3.07, 9.04 or
11.03);
(3) the date or dates on which the principal and premium, if any,
of the Securities of the series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, or the method by which such rate or rates shall be
determined, if any, the date or dates from which such interest shall
accrue, or the method by which such date or dates shall be determined,
the interest payment dates on which such interest shall be payable and
the record dates for the determination of Holders to whom interest is
payable;
(5) the place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee, where the principal of (and
premium, if any) and interest on Securities of the series shall be
payable; the extent to which, or the manner in which, any interest
payable on any Global Security on an Interest Payment Date will be
paid, if other than in the manner provided in Section 3.08; and the
manner in which any principal of, or premium, if any, on, any Global
Security will be paid, if other than as set forth elsewhere herein;
(6) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the price
or prices at which and the period or periods within which and the terms
and conditions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 5.02 or provable in bankruptcy pursuant to Section 5.03;
(10) any Events of Default with respect to the Securities of a
particular series, if not set forth herein or if other than as set
forth herein;
(11) the extent to which the defeasance provisions of this
Indenture do not apply to the Securities of the series;
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(12) whether the Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, in such
case, the U.S. Depositary for such Global Security or Securities; the
manner in which and the circumstances under which Global Securities
representing Securities of the series may be exchanged for Securities
in definitive form, if other than, or in addition to, the manner and
circumstances specified in Section 3.07;
(13) the ranking of the Securities of such series, if other than
on a parity with all other unsecured, unsubordinated indebtedness of
the Company;
(14) provisions, if any, with regard to the conversion or exchange
of the Securities of such series, at the option of the Holders thereof
or the Company, as the case may be, for or into new Securities of a
different series or common stock or other securities of the Company;
(15) which if any, of the Eligible Guarantors shall guarantee the
Securities on the terms set forth in a Board Resolution or established
in one or more supplemental indentures hereto (each, a "Guarantor");
(16) the ranking of the obligations of each Guarantor under its
respective Guarantee, if other than on parity with all other unsecured,
unsubordinated indebtedness of such Guarantor;
(17) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto.
SECTION 3.02. Denominations. The Securities of each series shall be
issuable in registered form without coupons in such denominations as shall be
specified as contemplated by Section 3.01. In the absence of any such
specification with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 3.03. Authentication and Dating. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for
authentication. Except as otherwise provided in this Article Three, the Trustee
shall thereupon authenticate and deliver said Securities to or upon a Company
Order, signed by two Officers of the Company by manual or facsimi le signature.
In authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall receive,
and (subject to Section 6.01) shall be fully protected in relying upon:
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(1) a copy of any Board Resolution relating thereto and, if
applicable, an appropriate record of any action taken pursuant to such
resolution, in each case certified by the Secretary or an Assistant
secretary of the Company;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate; and
(4) an Opinion of Counsel, which shall also state
(a) that the form of such Securities has been established by
or pursuant to a Board Resolution or by a supplemental indenture
as permitted by Section 2.01 in conformity with the provisions of
this Indenture;
(b) that the terms of such Securities have been established
by or pursuant to a Board Resolution or by a supplemental
indenture as permitted by Section 3.01 in conformity with the
provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and
to general equity principle s; and
(d) that all laws and requirements in respect of the
execution and delivery by the Company of the Securities have been
complied with and that authentication and delivery of the
Securities by the Trustee will not violate the terms of the
Indenture.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith shall determine that such action would expose the Trustee to personal
liability to existing Holders.
Each Security shall be dated the date of its authentication.
SECTION 3.04. Execution of Securities. The Securities shall be signed
in the name and on behalf of the Company by the manual or facsimile signatures
of two Officers of the Company (which may be printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise). Only such Securities as shall
bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee, shall be entitled to the ben
efits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Security executed by the Company shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
15
In case any Officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Securities so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Securities nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Securities had not ceased to be
such officer of the Company; and any Security may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Company, although at the date of
the execution of this Indenture any such person was not such an officer.
SECTION 3.05. Exchange and Registration of Transfer of Securities.
Securities of any series may be exchanged for a like aggregate principal amount
of Securities of the same series of other authorized denominations. Securities
to be exchanged shall be surrendered at the office or agency to be maintained by
the Company in the Borough of Manhattan, The City of New York, as provided in
Section 10.02. The Trustee is hereby appointed "Security Registrar" for the
purpose of the registration of Securities and of transfer of Securities in the
Security Register as herein provided. The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register for each series of Securities
issued hereunder (hereinafter collectively referred to as the "Security
Register") in which, subject to such reasonable regulations at it may prescribe,
the Company shall provide for the registration of Securities and the transfer of
Securities as in this Article Three provided. The Security Register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time. Upon due presentment for registration of transfer of
any Security of any series at such office or agency, the Company shall execute
and the Trustee shall register, authenticate and deliver in the name of the
transferee or transferees a new Security or Securities of the same series for an
equal aggregate principal amount.
All Securities presented for registration of transfer or for exchange,
redemption or payment shall (if so required by the Company or the Security
Registrar) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the registered Holder or his attorney duly
authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
The Company shall not be required to exchange or register the transfer
of (a) any Securities of any series for a period of 15 days next preceding any
selection of Securities of that series to be redeemed, or (b) any Securities
selected, called or being called for redemption except, in the case of any
Security to be redeemed in part, the portion thereof not so to be redeemed.
SECTION 3.06. Mutilated, Destroyed, Lost or Stolen Securities. In case any
temporary or definitive Security shall become mutilated or be destroyed, lost or
stolen, the Company in the case of a mutilated Security shall, and in the case
of a lost, stolen or destroyed Security may in its discretion, execute, and upon
its request the Trustee shall authenticate and deliver, a new Security of the
same series bearing a number, letter or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated
Security, or in
16
lieu of and in substitution for the Security so destroyed, lost or stolen, or if
any such Security shall have matured or shall be about to mature, instead of
issuing a substituted Security, the Company may pay or authorize the payment of
the same without surrender thereof (except in the case of a mutilated Security).
In every case the applicant for a substituted Security shall furnish to the
Company and to the Trustee such security or indemnity as may be required by them
to save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and to the Trustee evidence to
their satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.
The Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any Officer of the
Company. Upon the issuance of any substituted Security, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses connected
therewith and in addition a further sum not exceeding two dollars for each
Security so issued in substitution.
Every substituted Security issued pursuant to the provisions of this
Section 3.06 by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder. All Securities shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and shall preclude
(to the extent lawful) any and all other rights or remedies with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 3.07. Temporary Securities. Pending the preparation of definitive
Securities of any series the Company may execute and the Trustee shall
authenticate and deliver temporary Securities (printed or lithographed).
Temporary Securities shall be issuable in any authorized denomination and
substantially in the form of the definitive Securities but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Every such temporary Security shall be
executed by the Company and shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities. Without unreasonable delay the Company will execute
and deliver to the Trustee definitive Securities of such series and thereupon
any or all temporary Securities of such series may be surrendered in exchange
therefore, at the Corporate Trust Office of the Trustee, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities. Such exchange shall be made
by the Company at its own expense and without any charge therefor except that in
case of any such exchange involving any registration of transfer the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities authenticated and delivered
hereunder.
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with Section 3.03 and the Company Order with
17
respect to such series, authenticate and deliver one or more Global Securities
in temporary or permanent form that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the U.S. Depositary for such Global
Security or Securities or the nominee of such depositary, and (iii) shall bear a
legend substantially to the following effect: "This Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary, unless and until this Security is
exchanged in whole or in part for Securities in definitive form" and such other
legend as may be required by the U.S. Depositary.
Notwithstanding any other provision of this Section or Section 3.05,
unless and until it is exchanged in whole or in part for Securities in
definitive form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the U.S.
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 U.S. Depositary for such
series or a nominee of such successor depositary.
If at any time the U.S. Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Securities of such series or if at any time the U.S.
Depositary for Securities of a series shall no longer be a clearing agency
registered and in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor U.S. Depositary with respect to the Securities of such series. If a
successor U.S. Depositary for the Securities of such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such condition, the Company will execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of definitive Securities
of such series, will authenticate and deliver, Securities of such series in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in definitive
form and in an aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such series in exchange for such
Global Security or Securities.
If the Securities of any series shall have been issued in the form of
one or more Global Securities and if an Event of Default with respect to the
Securities of such series shall have occurred and be continuing, the Company
will promptly execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive form and in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
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If specified by the Company pursuant to Section 3.01 with respect to
Securities of a series, the U.S. Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in whole
or in part for Securities of such series in definitive form on such terms as are
acceptable to the Company and such depositary. Thereupon, the Company shall
execute and the Trustee shall authenticate and deliver, without charge:
(1) to each Person specified by the U.S. Depositary a new
Registered Security or Securities of the same series, of any authorized
denomination as requested by such Person in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Global Security; and
(2) to the U.S. Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.
Upon the exchange of a Global Security in whole for Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Securities so issued in exchange for a Global Security shall be registered in
such names and in such authorized denominations as the U.S. Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Persons in whose names such Securities are so registered.
SECTION 3.08. Payment of Interest; Interest Rights Preserved. Interest
on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date or within 30 days
thereafter (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by virtue
of having been such Holder; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the
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name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each
Holder at his address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. The Trustee may, in
its discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in a newspaper,
customarily published in the English language on each Business Day and
of general circulation in the Borough of Manhattan, The City of New
York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if after notice given
by the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.09. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee, the
Authenticating Agent and any agent of the Company or the Trustee may treat the
Person in whose name the Security is registered as the owner of such Security
for the purpose of receiving payment of principal of, and (subject to Section
3.08) interest on, such Security and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the Company, the Trustee, the
Authenticating Agent nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.10. Cancellation. All Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such
Securities and Securities surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereu nder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of by the Trustee in its customary manner.
SECTION 3.11. Computation of Interest. Except as otherwise specified
as contemplated by Section 3.01 for Securities of any Series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
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SECTION 3.12. 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 or as contained
in any notice of a redemption and that reliance may be placed only on the other
id entification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
3.06 and (ii) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.03) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturities within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
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(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and the obligations
of the Trustee to any Authenticating Agent under Section 6.14 shall survive such
satisfaction and discharge.
SECTION 4.02. Application of Trust Money. All money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and inter est 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.
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default.
"Events of Default", wherever used herein with respect to Securities of
any series, means any one of the following events and such other events as may
be established with respect to the Securities of that series as contemplated by
Section 3.01 hereof (whatever the reasons for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any
Security of that series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of any of the principal of and premium,
if any, on any Security of that series as and when the same shall
become due and payable, either at Maturity, upon redemption, by
declaration, repayment or otherwise; or
(c) default in the payment or satisfaction of any sinking fund
installment as and when the same shall become due and payable by the
terms of a Security of that series; or
(d) failure on the part of the Company or a Guarantor duly to
observe or perform any other of the covenants or agreements on the part
of the Company or a Guarantor in this Indenture (other than those set
forth exclusively in the terms of any particular series of Securities
established as contemplated in this Indenture) continued for a period
of 60 days after the date on which written notice of such failure,
requiring the
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Company or a Guarantor to remedy the same, shall have been give n to
the Company or a Guarantor by the Trustee, or to the Company or a
Guarantor and the Trustee by the Holders of at least 25 percent in
aggregate principal amount of the Securities of such series at the
time Outstanding, and stating that such notice is a "Notice of
Default" hereunder; or
(e) the commencement by the Company or any Significant Subsidiary
of the Company or any group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary of a voluntary case or
proceeding under any applicable U.S. federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
the Company or any Significant Subsidiary of the Company or any group
of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary to the entry of a decree or order for relief in respect of
the Company or any Significant Subsidiary of the Company or any group
of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary in an involuntary case or proceeding under any applicable
U.S. federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against the Company or any Significant Subsidiary of the
Company or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary, or the filing by the Company or
any Significant Subsidiary of the Company or any group of Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary of a
petition or answer or consent seeking reorganization or relief under
any applicable U.S. federal or state law, or the consent by the Company
or any Significant Subsidiary of the Company or any group of
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary to the filing of such petition or to the appointment of or
the taking possession by a custodian of the Company or any Significant
Subsidiary of the Company or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary or of any substantial
part of their properties, or the making by the Company or any
Significant Subsidiary of the Company or any group of Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary of an
assignment for the benefit of creditors, or the admission by the
Company or any Significant Subsidiary of the Company or any group of
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary in writing of their inability to pay its debts generally as
they become due, or the taking of corporate action by the Company or
any Significant Subsidiary of the Company or any group of Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary
expressly in furtherance of any such action; or
(f) a Guarantee of a Security of that Series (other than in
accordance with the terms of the Guarantee) shall be held in any
judicial proceeding to be unenforceable or invalid.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in Section 5.01 (other than in clause
(e) with respect to the Company) or established pursuant to Section 3.01 with
respect to Securities of any series at the time Outstanding occurs and is
continuing, then and in each and every such case, unless the principal of all
the Securities of such series shall have already become due and payable, either
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the Trustee or the Holders of not less than 25 percent in aggregate principal
amount of the Securities of such series then Outstanding hereunder, by notice in
writing to the Company (and to the Trustee if given by Holders), may declare the
principal amount (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all the Securities of such series plus accrued and
unpaid interest to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities of such series contained to the contrary
notwithstanding. If an Event of Default described in clause (e) in respect of
the Company occurs and is continuing, then and in each and every such case,
unless the principal of all the Securities shall have already become due and
payable, the principal amount of all the Securities of each series then
Outstanding hereunder (or, if any Securities are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms thereof) plus any accrued and unpaid interest shall become immediately due
and payable. The foregoing provisions are, however, subject to the condition
that if, at any time after the principal amount (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amounts as may be specified in the terms of that series) of the Securities of
any series (or of all the Securities, as the case may be) shall have been
declared or become due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of such series (or of all the Securities, as the case may be) and the principal
of and premium, if any, on any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest on overdue installments of interest, to the extent
that payment of such interest is enforceable under applicable law, and on such
principal and premium, if any, at the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) borne by the Securities of such
series (or at the rates of interest or Yields to Maturity of all the Securities,
as the case may be), to the date of such payment or deposit) and the reasonable
expenses of the Trustee, and any and all defaults under this Indenture, other
than the nonpayment of principal of or premium, if any, or accrued interest on
Securities of such series (or of all the Securities, as the case may be) which
shall have become due by acceleration, shall have been cured or waived pursuant
to Section 5.08, then and in every such case the Holders of a majority in
aggregate principal amount of the Securities of such series (or of all the
Securities, as the case may be) then Outstanding, by written notice to the
Company and to the Trustee, may waive all defaults with respect to that series
(or with respect to all Securities, as the case may be) and rescind and annul
such declaration and its consequences; but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon.
In case the Trustee or any Holder shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or to such Holder, then and
in every such case the Company and the Trustee and the Holders shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company and the Trustee and the Holders shall
continue as though no such proceeding had been taken.
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SECTION 5.03. Payment of Securities on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the
payment of any installment of interest upon any of the Securities of any series
as and when the same shall become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in the
payment of the principal of and premium, if any, on any of the Securities of any
series as and when the same shall become due and payable, whether at maturity of
the Securities of that series or upon redemption or by declaration, repayment or
otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the Holders of the Securities of that series, the
whole amount that then shall have become due and payable on all such Securities
of that series for principal and premium, if any, or interest, or both, as the
case may be, with interest upon the overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) upon the overdue
installments of interest at the rate or Yield to Maturity (in the case of
Original Issue Discount Securities) borne by the Securities of that series; and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable compensation to the
Trustee, its agents, attorneys and counsel, and any expenses or liabilities
incurred by the Trustee hereunder other than through its negligence or bad
faith.
In case the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Company or any other obligor upon such Securities wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Securities of any
series under any applicable bankruptcy, insolvency or similar law, or in case a
receiver or trustee shall have been appointed for the property of the Company or
such other obligor, or in the case of any other similar judicial proceedings
relative to the Company or other obligor upon the Securities of any series, or
to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Securities of any series shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.03 shall be entitled and empowered, by intervention
in such proceedings or otherwise, to file and prove a claim or claims for the
whole amount of principal (and premium, if any) and interest (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) owing
and unpaid in respect of the Securities of any series and, in case of any
judicial proceedings, 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 and
of the Holders allowed in such judicial proceedings relative to the Company or
any other obligor on the Securities of any series, its or their creditors, or
its or their property, and to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the Holders to make
such payments to the Trustee, and, in the event
25
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for compensation and expenses,
including counsel fees and expenses incurred by it up to the date of such
distribution. To the extent that such payment of reasonable compensation,
expenses and counsel fees and expenses out of the estate in any such proceedings
shall be 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, moneys,
securities and other property which the Holders of the Securities of any series
may be entitled to receive in such proceedings, whether in liquidation or under
any plan of reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof on any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the Holders of all
the Securities in respect of which such action was taken.
SECTION 5.04. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee under this Article Five shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its negligence or
bad faith;
SECOND: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall not have become
due and be unpaid, to the payment of interest on the Securities of that
series, in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at
the rate or Yield to Maturity (in the case of Original Issue Discount
Securities) borne by the Securities of that series, such payments to be
made ratably to the persons entitled thereto;
THIRD: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall have become due,
by declaration or otherwise, to the payment of the whole amount then
owing and unpaid upon the Securities of that series for principal and
premium, if any, and interest, with interest on the overdue principal
and premium, if any, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the
rate or Yield to Maturity (in the case of Original Issue Discount
Securities) borne by the Securities of that series; and in case such
moneys shall be insufficient to pay in full the whole amounts so due
and unpaid upon the Securities of that series, then to the payment of
such principal and premium, if any, and interest without preference or
priority of principal and premium, if any, over interest, or of
interest over principal and premium, if any, or of any installment of
interest over any other installment of interest, or of any Security of
that series over any other
26
Security of that series, ratably to the aggregate of such principal
and premium, if any, and accrued and unpaid interest; and
FOURTH: Any surplus then remaining shall be paid to the Company,
its successors or assigns, or to whomsoever may be entitled to receive
the same.
SECTION 5.05. Proceedings by Holders. No Holder of any Security of any
series shall have any right by virtue of or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than
25 percent in aggregate principal amount of the Securities of that series then
Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such indemnity reasonably satisfactory to the Trustee as
it may require against the costs, expenses and liabilities to be incurred
therein or thereby, and the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and during such 60-day period, no
direction inconsistent with such written request has been given to the Trustee
by the Holders of a majority in aggregate principal amount of the Securities of
that series then Outstanding (or such amount as shall have acted at a meeting
pursuant to the provisions of this Indenture), it being understood and intended,
and being expressly covenanted by the taker and Holder of every Security with
every other taker and Holder and the Trustee, that no one or more Holders shall
have any right in any manner whatever by virtue of or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holder, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all such
Holders.
Notwithstanding any other provisions in this Indenture, however, the
right of any Holder of any Security to receive payment of the principal of and
premium, if any, and interest on such Security, on or after the respective due
dates expressed in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates shall not be impaired or
affected without the written consent of such Holder.
SECTION 5.06. Proceedings by Trustee. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem necessary to protect and enforce any of such rights,
either by suit in equity or by action at law or by proceeding in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in
this Indenture, or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
SECTION 5.07. Remedies Cumulative and Continuing. All powers and
remedies given by this Article Five to the Trustee or to the Holders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Holders, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no
27
delay or omission of the Trustee or of any Holder to exercise any right or power
accruing upon any default occurring and continuing as aforesaid shall impair any
such right or power, or shall be construed to be a waiver of any such default or
an acquiescence therein; and, subject to the provisions of Section 5.05, every
power and remedy given by this Article Five or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders.
SECTION 5.08. Direction of Proceedings and Waiver of Defaults by
Majority of Holders. The Holders of a majority in aggregate principal amount of
the Securities of any series at the time Outstanding shall have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series; provided, however, that
(subject to the provisions of Section 6.01) the Trustee shall have the right to
decline to follow any such direction if the Trustee, being advised by counsel,
determines that the action or proceeding so directed may not lawfully be taken
or if the Trustee in good faith shall determine that the action or proceedings
so directed would involve the Trustee in personal liability. Subject to Section
5.02, the Holders of a majority in aggregate principal amount of the Securities
of that series at the time Outstanding may on behalf of the Holders of all of
the Securities of that series waive any past default or Event of Default
described in Section 5.01, or any other Event of Default for such series
specified in the terms thereof as contemplated by Section 3.01, and its
consequences except a default in the payment of interest, or premium, if any,
on, or the principal of any of the Securities or a default which, under Section
9.02, cannot be modified or amended without the consent of each Holder of each
Security affected by such waiver. Upon any such waiver the Company, the Trustee
and the Holders of the Securities of that series shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon. Whenever any default or Event of Default hereunder
shall have been waived as permitted by this Section 5.08, said default or Event
of Default shall for all purposes of the Securities of that series and this
Indenture be deemed to have been cured and to be not continuing.
SECTION 5.09. Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.09
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Holder of the Securities of any series or group of such Holders, holding in
the aggregate more than ten percent in principal amount of the Outstanding
Securities of that series or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or premium, if any, or interest
on any Security against the Company on or after the due date expressed in such
Security.
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ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Indenture or the Trust
Indenture Act, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine w hether or not they substantially conform to the
requirements of this Indenture (but needs not confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein).
(b) In case an Event of Default actually known to a Responsible Officer
of the Trustee with respect to the Securities of a series has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture with respect to such series, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.08 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers.
29
(d) The Trustee shall not be obligated to pay interest on any money or
other assets received by it unless otherwise agreed with the Company. Assets
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.02. Notice of Defaults.
Within 90 days after the occurrence of any default with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of that Series, as their names and addresses appear in the Security
Register, notice of all defaults with respect to that Series actually known to a
Responsible Officer of the Trustee, unless such defaults shall have been cured
or waived before the giving of such notice; provided, however, that, except in
the case of a default in the payment of the principal of or premium, if any, or
interest on any of the Securities of such series or in the making of any sinking
fund payment with respect to such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders. For the purpose of this Section, the term " default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default.
SECTION 6.03. Certain Rights of Trustee.
Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document (whether in
its original or facsimile form) believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, conclusively rely upon an Officers'
Certificate;
(d) the Trustee may consult with the counsel of its own selection
and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
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(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in complying with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled t o examine the books, records and premises of the Company,
personally or by agent or attorney at the expense of the Company and
shall incur no liability of any kind by reason of such inquiry or
investigation;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is
in fact such a default is received by the Trustee pursuant to Section
1.05, and such notice references the Securities and this Indenture; and
(i) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.
(j) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate previously delivered
and not superseded.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee and any Authenticating Agent assume no responsibility
for their correctness. The Trustee and any Authenticating Agent make no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
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SECTION 6.05. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar, Authenticating Agent
or any other agent of the Company or of the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.
SECTION 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 6.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as shall be determined by a court
of competent jurisdiction to have been caused by its own negligence or
willful misconduct; and
(3) to fully indemnify the Trustee, any predecessor Trustee and
their agents for, and to hold them harmless against, any and all loss,
liability, claim, damage, taxes (other than taxes based upon the income
of the Trustee) or expense (including legal fees and expenses) incurred
without negligence or willful misconduct on their part, arising out of
or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending themselves 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 their powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest on
Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.01(e), the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the
services are intended to constitute
32
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
SECTION 6.08. Disqualification; Conflicting Interests.
The Trustee for the Securities shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act during the period of time required
thereby. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the penultimate paragraph of Section
310(b) of the Trust Indenture Act. In determining whether the Trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded Securities
of any particular series of Securities other than that series.
SECTION 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(1) a corporation organized and doing business under the laws of
the United States of America, any state thereof, or the District of
Columbia, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by Federal or State
authority, or
(2) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as a
Trustee pursuant to a rule, regulation, or other order of the
Commission, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of such
foreign government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to United States
institutional trust ee,
having a combined capital and surplus of at least $50,000,000 and
having its Corporate Trust Office in the Borough of Manhattan, the City of New
York, or such other city as contemplated by Section 3.01 with respect to any
series of Securities. If such corporation publishes reports of condition at
least annually, pursuant to law or to requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. Neither the Company nor any Person directly or indirectly
controlling, controlled by, or under the common control with the Company shall
serve as Trustee for the Securities. If at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereunder specified in this
Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
33
(b) The Trustee may resign at any time with respect to one or more or
all series of Securities by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the S ecurities of such series.
(c) The Holders of a majority in aggregate principal amount of the
Securities of one or more series (each series voting as a class) or all series
at the time Outstanding may at any time remove the Trustee with respect to the
applicable series or all series, as the case may be, and by written notice of
such action to the Company, the Trustee and the successor Trustee, nominate with
respect to the applicable series or all series, as the case may be, a successor
Trustee which shall be deemed appointed as successor Trustee with respect to the
applicable series unless within ten days after such nomination the Company
objects thereto, in which case the Trustee so removed or any Holder of
Securities of the applicable series who has been a bona fide holder of a
Security or the applicable series for at least six months may, subject to the
provisions of Section 5.09 on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act pursuant to Section 6.08 hereof after written
request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, unless the Trustee's
duty to resign is stayed in accordance with the provisions of Section
310(b) of the Trust Indenture Act, or
(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting, or a decree or
order for relief by a court having jurisdiction in the premises shall
have been entered in respect of the Trustee in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted, or
any other applicable Federal or State, bankruptcy, insolvency or
similar law; or a decree or order by a court having jurisdiction in the
premises for the appointment of a receiver or custodian or liquidator
or trust ee or assignee in bankruptcy or insolvency of the Trustee or
of its property, or for the winding up of its affairs shall have been
entered, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law, or
shall consent to the appointment of a receiver or custodian or
liquidator or trustee or assignee in bankruptcy or insolvency of it or
of its property, or shall make an assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due,
or corporate action shall be taken by the Trustee in furtherance of any
such action,
34
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.09, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee to the vacated office.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to the Securities of such series and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities o f such series and the address of its Corporate
Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its lien, if any,
provided for in Section 6.07. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
predecessor Trustee and each successor Trustee with respect to the Securities of
any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor
Trustee is not retiring
35
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees, co-trustees of the same trust and that
each trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such trustee.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Security shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in Subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indentur e securities, as defined in
Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three-month period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this Subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the Company upon
the date of such default; and
(2) all property received by the Trustee in respect of any claim
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such
three-month period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee
36
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or
hereafte r constituted, or any other Federal or State bankruptcy,
insolvency or similar law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter or mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
tha t a default as defined in Subsection (c) of this Section would
occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Holders and the holders of other indenture securities
in such manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee and the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or similar law, but after crediting thereon receipts on
account of the
37
indebtedness represented by their respective claims from all sources other than
from such dividends and from funds and property so held in such special account.
As used in this paragraph, with respect to any claim, the term "dividends" shall
include any distribution with respect to such claim, in bankruptcy or
receivership or proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law, whether such
distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (i) to apportion between the
Trustee and the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee and the Holders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provision of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three-month period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this Subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such
Trustee had continued as Trustee, occurred after the beginning of
such three-months period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of
this Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under any
indenture, or any securities or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
38
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in Subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the
Company or an obligor under the Securities; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper as defined in Subsection
(c) of this Section.
(c) For the purpose of this Section only:
(1) The term "default" means any failure to make payment in full
of the principal of or interest on any of the Securities or upon the
other indenture securities when and as such principal or interest
becomes due and payable.
(2) The term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of this Section, and
(iii) under which a default exists at the time of the apportionment of
the funds and property held in such special account.
(3) The term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandi se previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
(5) The term "Company" means any obligor upon the Securities.
SECTION 6.14. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents which shall be authorized to act
on behalf of the Trustee to
39
authenticate Securities issued upon exchange, transfer or partial redemption
thereof or pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a bank or trust company or
corporation organized and doing business and in good standing under the laws of
the United States of America, or of any State, authorized under such laws to act
as Authenticating Agent, having a combined capital and surplus of not less than
$1,500,000 and subject to supervision or examination by Federal or State
authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may at any time resign by giving written notice
of resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail notice of such
appointment to all Holders, as their names and addresses appear on the Security
Register. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities
shall have endorsed thereon, in addition to the Trustee's Certificate, an
alternate Trustee's Certificate in the following form:
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This is one of the Securities described in the within-mentioned
Indenture.
The Bank of New York,
as Trustee
By
----------------------------------
Authenticating Agent
By
----------------------------------
Authorized Signatory
Dated:
------------------------------
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, (and not more than 15 days after each Regular
Record Date of each series of Securities having such a Regular Record
Date), a list, in such form as the Trustee may reasonable require, of
the names and addresses of the Holders as of such Regular Record Date,
and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
excluding from any such list names and addresses received by the Trustee in the
capacity of Security Registrar if the Trustee is then acting in such capacity.
SECTION 7.02. Preservation of Information: Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in the capacity of Security
Registrar if the Trustee is then acting in such capacity. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt of a
new list so furnished.
(b) If three or more Holders (hereinafter referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a
41
Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders with respect to their rights under this Indenture
or under the Securities and is accompanied by a copy of the form of proxy or
other commu nication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 7.02(a), or
(ii) inform such applicants as to the approximate number
of Holders whose names and addresses appear in the
information preserved at the time by the Trustee in
accordance with Section 7.02(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information preserved
at the time by the Trustee in accordance with Section 7.02(a), a copy of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any Authenticating Agent nor any Paying Agent nor any Security Registrar
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders in accordance with Section 7.02(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accounta ble by reason of mailing any material
pursuant to a request made under Section 7.02(b).
SECTION 7.03. Reports by Trustee.
(a) Within 60 days after __________ of each year commencing with the
year 200_, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report dated as of __________
with respect to any of the following events which
42
may have occurred within the prior 12 months (but if no such event has occurred
within such period no report need be transmitted):
(1) any change to its eligibility under Section 6.09 and its
qualifications under Section 6.08;
(2) the creation of any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities, on any property or
funds held or collected by it as Trustee, except that the Trustee shall
not be required (but may elect) to report such advances if such
advances so remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Outstanding Securities on the date of such
report;
(4) any change to the amount, interest rate and maturity date of
all other indebtedness owing by the Company (or by any other obligor on
the Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Section
6.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of
a default, notice of which has been or is to be withheld by the Trustee
in accordance with Section 6.02.
(b) The Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Security Register, a brief report with respect to
the character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on property or funds
held or collected by it as Trustee, and which it has not previously reported
pursuant to this Subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Outstanding Securities at
such time, such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each securities exchange upon which the
Securities are listed and also with
43
the Commission. The Company will notify the Trustee when the Securities are
listed on any securities exchange.
SECTION 7.04. Reports by Company.
The Company will
(1) file with the Trustee, within 15 days after the Company
files them with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules
and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; provided, however, that the Company
shall not be required to deliver to the Trustee any materials for which
the Company has sought and obtained confidential treatment from the
Commission; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it will
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a security listed and registered on a National
Securities Exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Registrar, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
44
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE
SECTION 8.01. Consolidations and Mergers of Company and Conveyances
Permitted Subject to Certain Conditions.
The Company shall not consolidate with or merge with or into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in the event that the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed by
such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall
be a corporation organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia
and, if the entity surviving such transaction or transferee entity is
not the Company, then such surviving or transferee entity shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and premium, if any, and
interest, if any, on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
(2) at the time of consummation of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be
continuing; and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 8.02. Rights and Duties of Successor Corporation.
Upon any consolidation or merger by the Company with or into any other
corporation or any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety to any Person, in accordance with
Section 8.01, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease to another Person, the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
45
Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 8.03. Officers' Certificate and Opinion of Counsel.
The Trustee, subject to the provisions of Section 6.01, shall be
provided with an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale or conveyance, and any such
assumption, complies with the provisions of this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Holders. The
Company, when authorized by a Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto
for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
hereunder and the Securities or the Guarantees, if any; or
(b) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities any property or assets which the Company
may desire; or
(c) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Holders of all or
any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities stating that such
covenants are expressly being included solely for the benefit of such
series) as the Board of Directors of the Company and the Trustee shall
consider to be for the protection of the Holders of such Securities,
and to make the occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions or conditions
a default or an Event of Default permitting the enforcement of all or
any of the several remedies provided in this Indenture as herein set
forth; provided, however,
46
that in respect of any such additional covenant, restriction or
condition such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default; or
(d) to provide for the issuance under this Indenture of Securities
in coupon form (including Securities registrable as to principal only)
and to provide for exchangeability of such Securities with the
Securities issued hereunder in fully registered form and to make all
appropriate changes for such purpose; or
(e) to establish the form or terms of Securities or the
Guarantees, if any, of any series as permitted by Sections 2.01 and
3.01; or
(f) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture which shall
not adversely affect the interests of any Holder in any material
respect; or
(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 6.11; or
(h) to surrender any right or power herein conferred upon the
Company;
(i) to comply with the requirements of the Commission in order to
maintain the qualification of this Indenture under the Trust Indenture
Act; or
(j) to add or modify any other provisions with respect to matters
or questions arising under this Indenture which the Company and the
Trustee may deem necessary or desirable; provided, however, that such
action pursuant to this clause (j) does not, in the good faith opinion
of the Board of Directors of the Company (as evidenced by a Board
Resolution) and the Trustee, adversely affect the interests of any
Holder of Securities in any material respect; or
(k) to modify the covenants or Events of Default solely in respect
of, or add new covenants or Events of Default that apply solely to,
Securities not Outstanding on the date of such supplemental indenture;
or
(l) to provide for guarantees of the Securities of any series
and/or to specify the ranking of the obligations of each Guarantor
under its respective Guarantee.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to, but may in its discretion, enter
47
into any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
9.01 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Securities at the time Outstanding, notwithstanding any of
the provisions of Section 9.02.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With
the consent (evidenced as provided in Section 1.04) of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities of
each series affected by such supplemental indenture (each series voting
separately as a class), the Company, when authorized by a Board Resolution, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each such
series; provided, however, that no such supplemental indenture shall (i) change
the Stated Maturity of any Security, or reduce the rate or change the time of
payment of interest thereon, or reduce the principal amount thereof or any
premium thereon, or make the principal thereof or interest or premium thereon
payable in any coin or currency other than that provided in the Securities or
reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the Maturity thereof pursuant
to Section 5.02 or the amount thereof provable in bankruptcy pursuant to Section
5.03 or impair the right to institute suit for enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or adversely affect the right of repayment, if any,
at the option of the Holder without the consent of the Holder of each Security
so affected, (ii) reduce the aforesaid percentage of Securities, the Holders of
which are required to consent to any such supplemental indenture, or the Holders
of which are required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, (iii) modify the obligation of the Company to maintain an
office or agency in the City of New York pursuant to Section 10.02, or (iv)
release any Guarantor from its obligations under its Guarantee (other than in
accordance with the terms thereof) without the consent of the Holder of each
Security so affected. A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Holders as aforesaid, the
Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture 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
supplemental indenture.
48
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures. Any supplemental indenture executed pursuant to the
provisions of this Article Nine shall comply with the Trust Indenture Act of
1939, as then in effect. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article Nine, this Indenture shall be deemed
to be modified and amended in accordanc e therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company, and the Holders shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 9.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Nine may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of Direct
ors, to any modification of this Indenture contained in any such supplemental
indenture may be prepared and executed by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.
The Trustee, subject to the provisions of Section 6.01, shall be
provided with an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article Nine.
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of, premium, if
any, and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment and an office or agency where Securities may be surrendered for transfer
or exchange and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Corporate Trust Office of
the Trustee shall be such office of the Company in The City of New York, and the
Trustee shall be the agent of the Company for all of the foregoing purposes,
unless the Company shall designate and maintain some other office or agency for
such purposes
49
and give the Trustee written notice of the location thereof. The Company will
give prompt written notice to the Trustee of any change in the location of any
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency in the Borough of Manhattan, The City of New
York, the Corporate Trust Office of the Trustee shall be conclusively deemed to
be the agency of the Company for all such purposes.
SECTION 10.03. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of or premium, if any, or interest
on, any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or premium, if
any, or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act. Whenever the Company shall have one
or more Paying Agents it will, prior to 10:00 am on each due date of the
principal of or interest on, any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal or premium, if any, or interest, so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal or premium, if any, or interest, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will
(1) hold all sums held by it for the payment of the principal of
or premium, if any, or interest on Securities in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal or premium, if any, or interest; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal or premium, if any or
50
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of
New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 10.04. Payment of Taxes and Other Claims.
The Company will, and will cause any Significant Subsidiary to,
promptly pay and discharge or cause to be paid and discharged all material
taxes, assessments and governmental charges or levies lawfully imposed upon it
or upon its income or profits or upon any of its property, real or personal, or
upon any part thereof, as well as all material claims for labor, materials and
supplies which, if unpaid, might by law become a lien or charge upon its
property; provided, however, that neither the Company nor any Significant
Subsidiary shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge, levy, or claim if the amount,
applicability or validity thereof shall currently be contested in good faith by
appropriate proceedings and if the Company or such Significant Subsidiary, as
the case may be, shall have set aside on its books reserves deemed by it
adequate with respect thereto.
SECTION 10.05. Maintenance of Properties.
The Company will maintain and keep its properties and every part
thereof in such repair, working order and condition, and make or cause to be
made all such needful and proper repairs, renewals and replacements thereto, as
in the judgment of the Company are necessary in the interests of the Company;
provided, however, that nothing contained in this Section shall prevent the
Company from selling, abandoning or otherwise disposing of any of its properties
or discontinuing a part of its business from time to time if, in the judgment of
the Company, such sale, abandonment, disposition or discontinuance is advisable
and does not materially adversely affect the interests or business of the
Company.
SECTION 10.06. Statement as to Default.
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company (which as of the date hereof is December 31),
an Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company, they would normally have
knowledge of any failure by the Company to comply with all conditions, or any
Default by the Company with respect to any covenants, under this Indenture, and
further stating whether or not they have knowledge of any such failure or
Default and, if so, specifying each such failure or Default and the nature
thereof. In the event an Officer of the Company comes to have actual knowledge
of a Default, regardless of the date,
51
the Company shall deliver an Officers' Certificate to the Trustee specifying
such Default and the nature and status thereof.
SECTION 10.07. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Company determines that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 10.08. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 10.04, 10.05 and 10.07 or any
covenant added for the benefit of any series of Securities as contemplated by
Section 3.01, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Securities of such series at the
time Outstanding shall, by Act of such Holders, waive such compliance in such
instance, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
SECTION 10.09. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
SECTION 10.10 Reports.
(a) The Company shall deliver to the Trustee within 15 days after it
files them with the Commission copies of the annual reports and of the
information, documents, and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) which
the Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act; provided, however, the Company shall not be required
to deliver to the Trustee any materials for which the Company has sought and
received confidential treatment by the Commission. The Company also shall comply
with the other provisions of Section 314(a) of the Trust Indenture Act.
(b) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any informational contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to conclusively rely exclusively on Officers' Certificates).
(c) If at any time the Company is not subject to Section 13 or 15(d)
of the Exchange Act, upon the request of a Holder of a Security, the Company
will promptly furnish or cause to be furnished to such Holder or to a
prospective purchaser of such Security designated by such Holder, as the case
may be, the information, if any, required to be delivered by it pursuant to
Rule 144A(d)(4) under the Securities Act of 1933, as amended, to permit
compliance with Rule 144A in connection with the resale of such Security.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity except as otherwise specified as contemplated by Section
3.01 for Securities of such series.
SECTION 11.02. Notice of Redemption; Selection of Securities. In case
the Company shall desire to exercise the right to redeem all, or, as the case
may be, any part of the Securities of any series in accordance with their terms,
it shall fix a date for redemption and shall mail or cause to be mailed a notice
of such redemption at least 30 and not more than 60 days prior to the date fixed
for redemption to the Holders of Secur ities of such series so to be redeemed as
a whole or in part at their last addresses as the same appear on the Security
Register. Such mailing shall be by first class mail. The notice if mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. In any case, failure to give
such notice by mail or any defect in the notice to the Holder of any
52
Security of a series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Security
of such series.
Each such notice of redemption shall include CUSIP numbers and specify
the date fixed for redemption, the redemption price at which Securities of such
series are to be redeemed, the place or places of payment, that payment will be
made upon presentation and surrender of such Securities, that any interest
accrued to the date fixed for redemption will be paid as specified in said
notice, and that on and after said date any interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all the Securities of
a series are to be redeemed the notice of redemption shall specify the numbers
of the Securities of that series to be redeemed. In case any Security of a
series is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of that series in principal amount equal to the
unredeemed potion thereof will be issued.
Prior to 10:00 am on the redemption date specified in the notice of
redemption given as provided in this Section 11.02, the Company will deposit
with the Trustee or with one or more paying agents an amount of money sufficient
to redeem on the redemption date all the Securities or portions thereof so
called for redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption.
If all or less than all the Securities of a series are to be redeemed,
the Company will give the Trustee notice not less than 60 days prior to the
redemption date as to the aggregate principal amount of Securities to be
redeemed and the Trustee shall select, in such manner as in its sole discretion
it shall deem appropriate, the Securities of that series or portions thereof (in
multiples of $1,000, except as otherwise set forth in the applicable form of
Security) to be redeemed.
SECTION 11.03. Payment of Securities Called for Redemption. If notice
of redemption has been given as provided in Section 11.02 or Section 12.03, the
Securities or portions of Securities of the series with respect to which such
notice has been given shall become due and payable on the date and at the place
or places stated in such notice at the applicable redemption price, together
with any interest accrued to the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of such Securities at
the applicable redemption price, together with any interest accrued to said
date) any interest on the Securities or portions of Securities of any series so
called for redemption shall cease to accrue. On presentation and surrender of
such Securities at a place of payment in said notice specified, the said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with any interest accrued
thereon to the date fixed for redemption.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Company, a new Security or Securities of such
series, of authorized denominations, in principal amount equal to the unredeemed
portion of the Security so presented.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment".
SECTION 12.02. Satisfaction of Mandatory Sinking Fund Payments with
Securities. In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may at
its option (a) deliver to the Trustee Securities of that series theretofore
purchased or otherwise acquired by the Company, or (b) receive credit for the
principal amount of Securities of that series which have been previously
delivered by the Trustee to the Company 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; 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 mandatory sinking
fund payment shall be reduced accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund. Not less
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee a certificate signed by the
Treasurer or any Assistant Treasurer of the Company 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 or
crediting Securities of that series pursuant to Section 12.02 (which Securities
will, if not previously delivered, accompany such certificate) and whether the
Company intends to exercise its right to make a permitted optional sinking fund
payment with respect to such series. Such certificate shall also state that no
Event of Default has occurred and is continuing with respect to such series.
Such certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such certificate (or to deliver the Securities
specified in this paragraph), the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to deliver or
credit Securities as provided in Section 12.02 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request) with respect to the Securities
54
of any particular series shall be applied by the Trustee on the sinking fund
payment date on which such payment is made (or, if such payment is made before a
sinking fund payment date, on the sinking fund payment date following the date
of such payment) to the redemption of such Securities at the Redemption Price
specified in such Securities for operation of the sinking fund together with
accrued interest to the date fixed for redemption. Any sinking fund moneys not
so applied or allocated by the Trustee to the redemption of Securities shall be
added to the next cash sinking fund payment received by the Trustee for such
series and, together with such payment, shall be applied in accordance with the
provisions of this Section 12.03. Any and all sinking fund moneys with respect
to the Securities of any particular series held by the Trustee on the last
sinking fund payment date with respect to Securities of such series and not held
for the payment or redemption of particular Securities shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient
for the purpose, to the payment of the principal of the Securities of that
series at maturity.
The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in the last paragraph of
Section 11.02 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 11.02 except that the notice of
redemption shall also state that the Securities are being redeemed by operation
of the sinking fund. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section
11.03.
Prior to 10:00 am on each sinking fund payment date, the Company shall
pay to the Trustee in cash a sum equal to any interest accrued to the date fixed
for redemption of Securities or portions thereof to be redeemed on such sinking
fund payment date pursuant to this Section.
The Trustee shall not redeem any Securities of a series with sinking
fund moneys or mail any notice of redemption of such Securities by operation of
the sinking fund for such series during the continuance of a default in payment
of interest on such Securities or of any Event of Default (other than an Event
of Default occurring as a consequence of this paragraph) with respect to such
Securities, except that if the notice of redemption of any such Securities shall
theretofore have been mailed in accordance with the provisions hereof, the
Trustee shall redeem such Securities if cash sufficient for that purpose shall
be deposited with the Trustee for that purpose in accordance with the terms of
this Article. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur and any
moneys thereafter paid into such sinking fund shall, during the continuance of
such default or Event of Default, be held as security for the payment of such
Securities; provided, however, that in case such Event of Default or default
shall have cured or waived as provided herein, such moneys shall thereafter be
applied on the next sinking fund payment date for such Securities on which such
moneys may be applied pursuant to the provisions of this Section.
ARTICLE THIRTEEN
HOLDERS' MEETINGS
SECTION 13.01. Purposes of Meetings. A meeting of Holders of
Securities of any or all series may be called at any time and from time to time
pursuant to the provisions of this Article for any one or more of the following
purposes.
55
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Holders pursuant to any of the provisions of
Article Five;
(2) to remove the Trustee and appoint a successor trustee pursuant
to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Securities of any or all series, as the case may be, under any
other provision of this Indenture or under applicable law.
SECTION 13.02. Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Holders of Securities of any or all series to take any
action specified in Section 13.01, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as the Trustee shall determine.
Notice of every meeting of the Holders of Securities of any or all series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed not less than 20
nor more than 60 days prior to the date fixed for the meeting to Holders of
Securities of each series affected.
SECTION 13.03. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a Board Resolution, or the
Holders of not less than 10% in aggregate principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of
Holders of Securities of the series of which they hold not less than 10%, to
take any action authorized in Section 13.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed notice of such meeting within 20 days after
receipt of such request, then the Company or the Holders in the amount above
specified may determine the time and the place for such meeting and may call
such meeting to take any action authorized in Section 13.01 by mailing notice
thereof as provided in Section 13.02.
SECTION 13.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders, a Person shall be a
Holder at the close of business two Business Days prior to such meeting of one
or more Securities with respect to which such meeting is being held or be a
Person appointed by an instrument in writing as proxy by such a Holder. The only
Persons who will be entitled to be present or to speak at any meeting of Holders
shall be the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 13.05. Regulations.
Notwithstanding any other provision of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to the
56
appointment of proxies, the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall think fit. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 1.04 and the appointment of any proxy shall be proved in the manner
specified in said Section 1.04; provided, however, that such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof hereinbefore or in said Section
1.04 specified.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or the Holders as provided in Section 13.03, in which case the Company
or the Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting may be elected by vote of the Holders of a majority in principal
amount of the Securities with respect to which such meeting is being held
represented at the meeting and entitled to vote.
At any meeting each Holder or proxy shall be entitled to one vote for
each $1,000 principal amount of Securities with respect to which such meeting is
being held or represented by him and Outstanding (in the case of Original Issue
Discount Securities, such principal amount to be determined as provided in the
definition of "Outstanding"); provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Securities held
by him or instruments in writing as aforesaid duly designating him as the Person
to vote on behalf of other Holders. Any meeting of Holders duly called pursuant
to the provisions of Section 13.02 or 13.03 may be adjourned from time to time
by vote of the Holders (or proxies for such Holders) of a majority of the
Securities with respect to which such meeting is being held represented at the
meeting, and entitled to vote, and the meeting may be held as so adjourned
without further notice.
Notwithstanding anything in this Section to the contrary, at any
meeting of Holders, the presence of Persons holding or representing Securities
with respect to which such meeting is being held in an aggregate principal
amount sufficient under the appropriate provision of this Indenture to take
action on any business for the transaction of which such meeting was called
shall constitute a quorum, but, if less than a quorum is present, the Persons
holding or representing a majority in aggregate principal amount of such
Securities represented at the meeting may adjourn such meeting with the same
effect, for all intents and purposes, as though a quorum had been present.
SECTION 13.06. Voting.
The vote upon any resolution submitted to any meeting of Holders of
Securities with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signature of such Holders or proxies
and the serial number or numbers and the principal amounts of the Securities
held or represented by them. The chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the
57
proceedings of each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was mailed as provided in Section
13.02. The record shall be signed and verified by the affidavits of the chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 13.07. Revocation by Holders.
At any time prior to (but not after) the evidencing to the Trustee, in
the manner provided in Section 1.04, of the taking of any action by the Holders
of the percentage in aggregate principal amount of the Securities specified in
this Indenture in connection with such action, any Person who is the Holder of a
Security the serial number of which is included in the Securities, the Holders
of which have consented to such action may, by filing written notice with the
Trustee at the Corporate Trust Office and upon proof of holding as provided in
Section 1.04, revoke such consent so far as concerns such Security, or if such
Security is a Predecessor Security, so far as concerns the portion of such
Security of which such Persons is the Holder. Except as aforesaid any such
consent given by the Holder of any Security shall be conclusive and binding upon
such Holder and upon all future Holders and owners of such Security and of any
Security issued in exchange therefor or in lieu thereof, irrespective of whether
or not any notation in regard thereto is made upon such Security. Any action
taken by the Holders of the percentage in aggregate principal amount of the
Securities specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the Holders of all the
Securities.
SECTION 13.08. No Delay.
Nothing in this Article contained shall be deemed or construed to
require any delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders under any of the provisions of this
Indenture or of the Securities by reason of any call of a meeting of Holders or
any rights expressly or impliedly conferred hereunder to make such call.
SECTION 13.09. Action by Holders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action) the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Holders in person or by agent or proxy appointed in writing, or
(b) by the record of such Holders voting in favor thereof at any meeting of such
Holders duly called and held in accordance with the provisions of this Article
Thirteen, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of such Holders.
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ARTICLE FOURTEEN
DEFEASANCE
SECTION 14.01. Applicability of Article. The provisions of this
Article shall be applicable to Securities of a series except as otherwise
specified pursuant to Section 3.01 for Securities of such series.
SECTION 14.02. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations. At the Company's option, either (a) the Company shall be deemed to
have been Discharged (as defined below) from its obligations with respect to
Securities of any series ("Legal Defeasance Option") or (b) the Company shall
cease to be under any obligation to comply with any term, provision or condition
set forth in Sections 8.01, 10.04 and 10.05 with respect to Securities of any
series (and, if so specified pursuant to Section 3.01, any other obligation of
the Company or restrictive covenant added for the benefit of such series
pursuant to Section 3.01) ("Covenant Defeasance Option") at any time after the
applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series (i) money in an amount, or
(ii) U.S. Government Obligations (as defined below) which through the
payment of interest and principal in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any pay ment, money in an amount, or (iii) a combination of (i) and
(ii), sufficient, in the opinion (with respect to (i) and (ii)) of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge each installment of principal (including any mandatory
sinking fund payments) of and premium, if any, and interest on, the
Outstanding Securities of such series on the dates such installments of
interest or principal and premium are due;
(2) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest as defined in
Section 6.08 and for purposes of the Trust Indenture Act with respect
to the Securities of any series;
(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) no Event of Default or event (including such deposit) which,
with notice or lapse of time or both, would become an Event of Default
with respect to the Securities of such series shall have occurred and
be continuing on the date of such deposit and, with respect to the
legal defeasance option only, no Event of Default under Section 5.01(e)
or event which with the giving of notice or lapse of time, or both,
would become an Event of Default under Section 5.01(e) or Section
5.01(f) s hall have occurred and be continuing on the 91st day after
such date; and
59
(5) the Company shall have delivered to the Trustee an Opinion of
Counsel or a ruling from the Internal Revenue Service to the effect
that the Holders of the Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance or Discharge.
Notwithstanding the foregoing, if the Company exercises its covenant
defeasance option and an Event of Default under Section 5.01(e) or event which
with the giving of notice or lapse of time, or both, would become an Event of
Default under Section 5.01(e) shall have occurred and be continuing on the 91st
day after the date of such deposit, the obligations of the Company referred to
under the definition of covenant defeasance option with respect to such
Securities shall be reinstated.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such series to receive,
from the trust fund described in clause (1) above, payment of the principal of
(and premium, if any) and interest on such Securities when such payments are
due, (B) the Company's obligations with respect to the Securities of such series
under Sections 3.05, 3.06, 3.07, 10.02 and 14.03 and to the Trustee under
Section 6.07 and (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 14.03. Deposited Moneys and U.S. Government Obligations to Be
Held in Trust. All moneys and U.S. Government Obligations deposited with the
Trustee pursuant to Section 14.02 in respect of Securities of a series shall be
held in trust and applied by it, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company a cting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and to
become due thereon for principal (and premium, if any) and interest, if any, but
such money need not be segregated from other funds except to the extent required
by law.
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SECTION 14.04. 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 or
interest on any Security 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 Security shall thereafter, as
an unsecured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in 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.
* * * * * *
61
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
L-3 COMMUNICATIONS HOLDINGS, INC.
By:
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Name
Title
By:
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Name
Title
THE BANK OF NEW YORK
By:
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Name
Title