EXHIBIT 4.4
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TELIGENT, INC.
TO
FIRST UNION NATIONAL BANK,
Trustee
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Form of Subordinated Indenture
Dated as of
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SUBORDINATED INDENTURE, dated as of , by
and between TELIGENT, INC., a corporation duly
organized and existing under the laws of the State
of Delaware (herein called the "Company"), having
its principal office at 8065 Leesburg Pike,
Vienna, VA 22182 and FIRST UNION NATIONAL BANK, a
national banking association (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
Securities, notes, bonds or other evidences of indebtedness, to be
issued in one or more fully registered series.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of
this Indenture and shall, to the extent applicable, be governed by
such provisions.
All things necessary have been done to make this Indenture a
valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Securities are to be authenticated, issued and delivered, 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 the respective Holders from time to
time of the Securities or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture and of any indenture
supplemental hereto, except as otherwise expressly provided or unless
the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article, and include the
plural as well as the singular;
(b) all other terms used herein that are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein, and the
terms "cash transaction" and "self-liquidating paper", as
used in TIA Section 311, shall have the meanings assigned to
them in the rules of the Commission adopted under the Trust
Indenture Act; and
(c) 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.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Company in respect
of certain taxes imposed on certain Holders and which are owing to
such Holders.
"Affiliate" means, as to any Person, any other Person that
directly or indirectly controls, or is under common control with, or
is controlled by, such Person. As used in this definition, "control"
(including, with its correlative meanings, "controlled by" and "under
common control with") shall mean possession, directly or indirectly,
of power to direct or cause the direction of management or policies of
such Person (whether through ownership of securities or partnership or
other ownership interests, by contract or otherwise), provided that,
in any event, unless otherwise specified in a supplemental indenture,
any Person that owns directly or indirectly 10% of more of the
securities having ordinary voting power for the election of directors
or other governing body of a corporation or 10% or more of the
partnership or other ownership interests of any other Person (other
than as a limited partner of such other Person) shall be deemed to
control such corporation or other Person. Notwithstanding the
foregoing, no individual shall be deemed to be an Affiliate of a
Person solely by reason of his or her being an officer or director (or
equivalent) of such Person.
"Authenticating Agent" means any person authorized by the
Trustee to authenticate Securities under Section 615.
"Bearer Security" means any Security established pursuant to
Section 301 which is payable to bearer.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in
the Borough of Manhattan, The City of New York are authorized or
obligated by law or executive order to close.
"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 Indenture such Commission
is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such
time.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture, until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by an officer of the
Company, and delivered to the Trustee.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate
trust business shall be administered, which office at the date of
execution of this Indenture is located at Corporate Trust (VA- 3279),
800 East Main Street, Richmond, Virginia 23219 except that, with
respect to presentation of Securities for payment or for registration
of transfer or exchange, such term shall mean the office or agency of
the Trustee at which, at any particular time, its corporate agency
business shall be conducted.
"Debt" means indebtedness for money borrowed, unless
otherwise specified in a supplemental indenture.
"Default" means any event, act or condition the occurrence
of which is, or after notice or the passage of time or both would be,
an Event of Default.
"Defaulted Interest" has the meaning specified in
Section 307.
"Depositary" means, unless otherwise specified by the
Company pursuant to either Section 204 or 301, with respect to
Securities of any series issuable or issued as a Global Security, The
Depository Trust Company, New York, New York, or any successor thereto
registered as a clearing agency under the Exchange Act or other
applicable statute or regulation.
"Designated Senior Debt" means, as such term may be modified
by a supplemental indenture:
Senior Debt that has, at the time of determination, an
aggregate principal amount outstanding to be specified in a
supplemental indenture (including the amount of all undrawn
commitments and matured and contingent reimbursement obligations
pursuant to letters of credit thereunder) that is specifically
designated in the instrument evidencing such Senior Debt and is
designated in a notice delivered by the Company to the holders or a
Representative of the holders of such Senior Debt and in an Officers'
Certificate delivered to the Trustee as "Designated Senior Debt" of
the Company for purposes of the Indenture.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934.
"Global Security" means, with respect to any series of
Securities issued hereunder, a Security which is executed by the
Company and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in
accordance with this Indenture and an indenture supplemental hereto,
if any, or Board
Resolution and pursuant to a Company Request, which shall be
registered in the name of the Depositary or its nominee and which
shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all of the Outstanding Securities of
such series or any portion thereof, in either case having the same
terms, including, without limitation, the same original issue date,
date or dates on which principal is due, and interest rate or method
of determining interest.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture"or "this Indenture" means this instrument as
originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities established as contemplated
by Section 301.
"Interest", when used with respect to an Original Issue
Discount Security by which its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
series of Securities, means the Stated Maturity of any installment of
interest on those Securities.
"Property" means, with respect to any Person, any interest
of such Person in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible, including capital stock
in, and other securities of, any other Person. For purposes of any
calculation required pursuant to the Indenture, the value of any
Property shall be its Fair Market Value, as such term will be defined
in a supplemental indenture.
"Maturity", when used with respect to any Securities, means
the date on which the principal of such Security becomes due and
payable as provided therein or herein, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors, a Vice Chairman of the Board of
Directors, the President or a Vice President, and by the Chief
Financial Officer, the Chief Accounting Officer, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee, which certificate shall comply
with this Indenture.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company and who shall be
reasonably acceptable to the Trustee.
"Original Issue Discount Security" means (i) any Security
which provides for an amount less than the principal amount thereof to
be due and payable upon a declaration for acceleration of the Maturity
thereof, and (ii) any other Security deemed an Original Issue Discount
Security for United States Federal income tax purposes.
"Outstanding", when used with respect to Securities of any
series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancelation;
(ii) such Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor reasonably satisfactory to the Trustee
has been made;
(iii) Securities, except to the extent expressly
provided in Sections 1202 and 1203, with respect to which
the Company has effected defeasance or covenant defeasance
as provided in Article Twelve; and
(iv) Securities that have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands the Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of such Securities Outstanding have given
any request, demand, authorization, direction, consent, notice or
waiver hereunder, (i) the principal amount of any Original Issue
Discount Security that shall be deemed to be Outstanding shall be the
amount of the principal thereof that would be due and payable as of
the date of the taking of such action upon a declaration of
acceleration of the Maturity thereof and (ii) for the purpose of
making the calculations required by TIA Section 313, 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 making such calculation or in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities that the Trustee knows to
be so owned shall be so disregarded. Securities so owned that have
been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's
right 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.
"Paying Agent" means any Person (including the Company
acting as Paying Agent) authorized by the Company to pay the principal
of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization, limited liability corporation or government or any
agency or political subdivision thereof.
"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 306 in exchange for a mutilated security or in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt
as the mutilated, lost, destroyed or stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price specified in the Security at which it
is to be redeemed pursuant to this Indenture.
"Registered Security" shall mean any Security which is
registered in the Security Register.
"Regular Record Date" for the interest payable on any
Security on any Interest Payment Date means the date specified in such
Security as the Regular Record Date.
"Representative" means the trustee, agent or representative
expressly authorized to act in such capacity, if any, for an issue of
Senior Debt.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of
directors, the chairman or any vice- chairman of the executive
committee of the board of directors, the chairman of the trust
committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other
officer of the Trustee duly authorized and customarily performing
functions similar to those performed by any of the above-designated
officers, and also means, with respect to a particular corporate trust
matter, any other duly authorized officer to whom such matter is
referred because of his knowledge of and familiarity with the
particular subject.
"Securities Act" means the Securities Act of 1933.
" Security" or "Securities" means any note or notes, bond or
bonds, debenture or debentures, or any other evidences of
indebtedness, as the case may be, of any series authenticated and
delivered from time to time under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Debt" of the Company shall have the meaning set
forth in a supplemental indenture.
"Senior Subordinated Debt" of the Company means the
Securities and any other subordinated Debt of the Company that
specifically provides that such Debt is to
rank pari passu with the Securities and is not subordinated by its
terms to any other subordinated Debt or other obligation of the
Company which is not Senior Debt.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or
any installment of principal thereof or interest thereon means the
date specified in such Security as the fixed date on which the
principal of such Security or such installment of principal or
interest is due and payable.
"Subsidiary" means, with respect to any Person, unless
otherwise specified in a supplemental indenture, (i) any corporation
more than 50% of the outstanding shares of Voting Stock of which is
owned, directly or indirectly, by such Person, or by one or more other
Subsidiaries of such Person, or by such Person and one or more other
Subsidiaries of such Person, (ii) any general partnership, joint
venture or similar entity, more than 50% of the outstanding
partnership or similar interests of which are owned, directly or
indirectly, by such Person, or by one or more other Subsidiaries of
such Person, or by such Person and one or more other Subsidiaries of
such Person and (iii) any limited partnership of which such Person or
any Subsidiary of such Person is a general partner.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended by the Trust Indenture Reform Act of 1990, as in
force at the date as of which this instrument was executed except as
provided in Section 905.
"Trust Officer" means any officer within the Corporate Trust
Administration department of the Trustee (or any successor group of
the trustee) with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Trustee" means the Person named as the Trustee in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean and include each Person who is
then a Trustee hereunder. If at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligations" means, unless otherwise
specified in a supplemental indenture, (x) securities that are (i)
direct obligations of the United States of America for the payment of
which the full faith and credit of the United States of America is
pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which
securities, in either case under clause (i) or (ii) above, are not
callable or redeemable at the option of the issuer thereof, and (y)
depository receipts issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any U.S. Government
Obligation that is specified in clause (x) above and held by such bank
for the account of the holder of such depository receipt, or with
respect to any specific payment of principal or interest on any U.S.
Government Obligation that is so specified
and held, 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 principal or interest of the U.S. Government Obligation
evidenced by such depository receipt.
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice
president".
"Voting Stock" means, with respect to any Person, securities
of any class or classes of capital stock in such Person entitling the
holders thereof (whether at all times or at the times that such class
of capital stock has voting power by reason of the happening of any
contingency) to vote in the election of members of the board of
directors or comparable body of such Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture
(including any covenant compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and
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 or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other than
pursuant to Section 1004) 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 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give
an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer
knows that the certificate or opinion or representations with respect
to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon (x) a certificate or
opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel knows
that the certificate or opinion or representations with respect to
such matters are erroneous or (y) one or more certificates of public
officials.
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 104. 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 or Holders of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by agents duly appointed in
writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required,
to the Company. If any Securities are denominated in coin or currency
other than that of the United States, then for the purposes of
determining whether the Holders of the requisite principal amount of
Securities have taken any action as herein described, the principal
amount of such Securities shall be deemed to be that amount of United
States dollars that could be obtained for such principal amount on the
basis of the spot rate of exchange into United States dollars for the
currency in which such Securities are denominated (as evidenced to the
Trustee by an Officers' Certificate) as of the date the taking of such
action by the Holders of such requisite principal amount is evidenced
to the Trustee as provided in the immediately preceding sentence. Such
instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of
the 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 conclusive in
favor of the Trustee and the Company, if made in the manner provided
in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of authority. The fact and date of the
execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner that
the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities
held by any Person, and the date of holding the same, shall be proved
by the Security Register.
(d) If the Company shall solicit from the Holders of
Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or
pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in
or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith and not later than the date
such solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall
be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Securities Outstanding have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and
for that purpose the Securities Outstanding shall be computed as of
such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this
Indenture not later than eleven months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee, any Paying Agent or the
Company in reliance thereon, whether or not notation of such action is
made upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, Attention: Corporate Trust
Department, or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company
addressed to it at
the address of its principal office specified in the first
paragraph of this Indenture, or at any other address
previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice of
any event to Holders by the Company or the Trustee, such notice shall
be sufficiently given (unless otherwise herein or in such Security
expressly provided) if in writing and mailed, first- class postage
prepaid, to each 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. Any notice mailed to a Holder in
the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives
such notice. Where this Indenture or any Security provides for notice
in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice
by 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 or irregularities in
regular mail service or by reason of any other cause, it shall be
impracticable to mail notice of any event to Holders when such notice
is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice for
every purpose hereunder.
SECTION 107. Effect of Headings, Table of Contents and Recitals.
The Article and Section headings herein, the Table of
Contents and the Recitals are for convenience only and shall not
affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company and the Trustee shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in any Securities, express or
implied, shall give to any Person (other than the parties hereto, any
Paying Agent, any Security Registrar and their successors hereunder,
and the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
This Indenture shall be governed by and construed in
accordance with the law of the State of New York (without giving
effect to the conflict of laws principles thereof). The Trustee, the
Company, and (upon their acceptance of Securities) the Holders, agree
to submit to the non-exclusive jurisdiction of any United States
Federal or State court located in the Borough of Manhattan, in the
City of New York in any action or proceeding arising out of or
relating to this Indenture or the Securities. This Indenture is
subject to the provisions of the Trust Indenture Act that are required
to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, date
established for the payment of Defaulted Interest, Redemption Date or
Stated Maturity or Maturity of any Securities shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of
the Securities) payment of principal (or premium, if any) or interest
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, date established for the payment of Defaulted Interest,
Redemption Date, or at the Stated Maturity or Maturity; provided that
no interest shall accrue for the period from and after such Interest
Payment Date, date established for the payment of defaulted interest,
Redemption Date, Stated Maturity or Maturity, as the case may be.
SECTION 113. No Recourse Against Others.
No recourse for the payment of the principal of, or premium,
if any, or interest on, any Security or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture or
in any Security, or because of the creation of any Debt represented
thereby, shall be had against any incorporator, stockholder, officer,
director, employee, controlling person of the Company or of a
Subsidiary of the Company or of any successor Person of the Company or
of a Subsidiary of the Company. Each Holder by accepting any Security
waives and releases all such liability, and such waiver and release is
part of the consideration for the issuance of such Security.
SECTION 114. Exhibits and Schedules.
All exhibits and schedules attached hereto are by this
reference made a part hereof with the same effect as if herein set
forth in full.
SECTION 115. Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
SECTION 116. Judgment Currency. The Company agrees, to the
fullest extent that it may effectively do so under applicable law,
that (a) if for the purpose of
obtaining judgment in any court it is necessary to convert the sum due
in respect of the principal of, or premium or interest, if any, on the
Securities of any series (the "Required Currency") into a currency in
which a judgment will be rendered (the "Judgment Currency"), the rate
of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in the City of New York
the Required Currency with the Judgment Currency on the New York
Banking Day (as defined below) preceding that on which final
unappealable judgment is given and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with subsection (a)),
in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be
payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required
Currency so expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under this Indenture.
For purposes of the foregoing, "New York Banking Day" means any day
except a Saturday, Sunday or a legal holiday in the City of New York
or a day on which banking institutions in the City of New York are
authorized or required by law or executive order to close.
SECTION 117. Duplicate Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 118. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in, and made a part of,
this Indenture. Any terms incorporated by reference in this Indenture
that are defined by the TIA, defined by TIA reference to another
statute or defined by Commission rule under the TIA, have the meanings
so assigned to them therein.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities shall have such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed
thereon, as may be required to comply with applicable laws or
regulations or with the rules of any securities exchange, or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. Any
portion of the text of any Security may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the
Security.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel
engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by
their execution of such Securities, subject, with respect to the
Securities of any series, to the rules of any securities exchange on
which such Securities are listed.
SECTION 202. Forms of Securities.
Each Security shall be in one of the forms approved
from time to time by or pursuant to a Board Resolution, or established
in one or more indentures supplemental hereto. Prior to the delivery
of a Security to the Trustee for authentication in any form approved
by or pursuant to a Board Resolution, the Company shall deliver to the
Trustee the Board Resolution by or pursuant to which such form of
Security has been approved, which Board Resolution shall have attached
thereto a true and correct copy of the form of Security which has been
approved thereby or, if a Board Resolution authorizes a specific
officer or officers to approve a form of Security, a certificate of
such officer or officers approving the form of Security attached
thereto. Any form of Security approved by or pursuant to a Board
Resolution must be acceptable as to form to the Trustee, such
acceptance to be evidenced by the Trustee's authentication of
Securities in that form or a certificate signed by a Responsible
Officer of the Trustee and delivered to the Company.
SECTION 203. Form of Trustee's Certificate of Authentication.
The form of Trustee's Certificate of Authentication for any
Security issued pursuant to this Indenture shall be substantially as
follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee,
Dated: By:
--------------- ---------------------
Authorized Signatory
SECTION 204. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to
Sections 202 and 301 that the Securities of a particular
series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall
execute and the Trustee or its agent shall, in accordance
with Section 303 and the Company Request delivered to the
Trustee or its agent thereunder, authenticate and deliver,
such Global Security or Securities, which (i) shall
represent, and shall be denominated in an amount equal to
the aggregate principal amount of, the Outstanding
Securities of such series to be represented by such Global
Security or Securities,
or such portion thereof as the Company shall specify in a
Company Request, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee or its agent
to the Depositary or pursuant to the Depositary's instruction
and (iv) shall bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part
for the individual Securities represented hereby, this Global
Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor
Depositary."
(b) Notwithstanding any other provisions of this
Section 204 or of Section 305, and subject to the provisions
of paragraph (c) below, unless the terms of a Global Security
expressly permit such Global Security to be exchanged in
whole or in part for individual Securities, a Global Security
may be transferred, in whole but not in part and in the
manner provided in Section 305, only to a nominee of the
Depositary for such Global Security, or to the Depositary, or
a successor Depositary for such Global Security selected or
approved by the Company, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global
Security notifies the Company that it is unwilling or unable
to continue as Depositary for such Global Security or if at
any time the Depositary for the Securities for such series
ceases to be a clearing agency registered under the Exchange
Act or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to such
Global Security. If a successor Depositary for such Global
Security is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee or
its agent, upon receipt of a Company Request for the
authentication and delivery of individual Securities of such
series in exchange for such Global Security, will
authenticate and deliver, individual Securities of such
series of like tenor and terms in an aggregate principal
amount equal to the principal amount of the Global Security
in exchange for such Global Security.
(ii) The Company may at any time and in its sole
discretion determine that the Securities of any series or
portion thereof issued or issuable in the form of one or more
Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Company will
execute, and the Trustee, upon receipt of a Company Request
for the authentication and delivery of individual Securities
of such series in exchange in whole or in part for such
Global Security, will authenticate and deliver individual
Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the
principal amount of such Global Security or Securities
representing such series or portion thereof in exchange for
such Global Security or Securities.
(iii) If specified by the Company pursuant to
Sections 202 and 301 with respect to Securities issued or
issuable in the form of a Global Security, the Depositary for
such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of
such series of like tenor and terms in definitive form on
such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the
Trustee or its
agent shall authenticate and deliver, without service charge,
(1) to each Person specified by such Depositary a new
Security or Securities of the same series of like tenor and
terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security;
and (2) to such Depositary a new Global Security of like
tenor and terms and in an authorized denomination equal to
the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal
amount of Securities delivered to the Holders thereof.
(iv) In any exchange provided for in any of the
preceding three paragraphs, the Company will execute and the
Trustee or its agent will authenticate and deliver individual
Securities in definitive registered form in authorized
denominations. Upon the exchange of the entire principal
amount of a Global Security for individual Securities, such
Global Security shall be canceled by the Trustee or its
agent. Except as provided in the preceding paragraph,
Securities issued in exchange for a Global Security pursuant
to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the
Trustee or the Security Registrar. The Trustee or the
Security Registrar shall deliver such Securities to the
Persons in whose names such Securities are so registered.
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities that may be
authenticated and delivered and Outstanding under this Indenture is
not limited.
The Securities may be issued in one or more series up to an
aggregate principal amount of Securities as from time to time may be
authorized by the Board of Directors. All Securities of each series
under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time of
the authentication and delivery or Stated Maturity of the Securities
of such series.
Each series of Securities shall be created either by or
pursuant to a Board Resolution or by or pursuant to an indenture
supplemental hereto. The Securities of each such series may bear such
date or dates, be payable at such place or places, have such Stated
Maturity or Maturities, be issuable at such premium over or discount
from their face value, bear interest at such rate or rates (which may
be fixed or floating), from such date or dates, payable in such
installments and on such dates and at such place or places to the
Holders of Securities registered as such on such Regular Record Dates,
or may bear no interest, and may be redeemable or repayable at such
Redemption Price or Prices, whether at the option of the Holder or
otherwise, and upon such terms, all as shall be provided for in or
pursuant to the Board Resolution or in or pursuant to the supplemental
indenture creating that series. There may also be established in or
pursuant to a Board Resolution or in or pursuant to a supplemental
indenture prior to the issuance of Securities of each such series,
provision for:
(1) the exchange or conversion of the Securities
of that series, at the option of the Company or the Holders
thereof, for or into new Securities of a different series or
other securities or other property of the Company or another
Person, including shares of capital stock of the Company or
any subsidiary of the Company or of any other Person or
securities directly or indirectly convertible into or
exchangeable for any such shares;
(2) a sinking or purchase fund or other mandatory
redemption or other analogous obligation;
(3) if other than U.S. dollars, the currency or
currencies or units based on or related to currencies in
which the Securities of such series shall be denominated and
in which payments of principal of, and any premium, interest
and Additional Amounts on, such Securities shall or may be
payable;
(4) if the principal of (and premium, if any) or
interest, if any, on the Securities of such series are to be
payable, at the election of the Company or a holder thereof,
in a currency or currencies or units based on or related to
currencies other than that in which the Securities are stated
to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(5) if the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of
such series may be determined with reference to an index
based on (i) a currency or currencies or units based on or
related to currencies other than that in which the Securities
are stated to be payable, (ii) changes in the price of one or
more other securities or groups or indexes of securities or
(iii) changes in the prices of one or more commodities or
groups or indexes of commodities, or any combination of the
foregoing, the manner in which such amounts shall be
determined;
(6) if the aggregate principal amount of the
Securities of that series is to be limited, such limitations,
and the maturity date of the principal amount of the
Securities of that series (which may be fixed or extendible),
and the rate or rates (which may be fixed or floating) per
annum at which the Securities of that series will bear
interest, if any, or the method of determining such rate or
rates, and the payment dates and record dates relating to
such interest payments;
(7) the exchange of Securities of that series, at
the option of the Holders thereof, for other Securities of
the same series of the same aggregate principal amount of a
different authorized kind or different authorized
denomination or denominations, or both;
(8) the appointment by the Trustee of an
Authenticating Agent in one or more places other than the
location of the office of the Trustee with power to act on
behalf of the Trustee and subject to its direction in the
authentication and delivery of the Securities of any one or
more series in connection with such
transactions as shall be specified in the provisions of this
Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series;
(9) the percentage of their principal amount at
which such Securities will be issued, and the portion of the
principal amount of Securities of the series, if other than
the total principal amount thereof, which shall be payable
upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or provable in bankruptcy pursuant to
Section 504;
(10) any Event of Default with respect to the
Securities of such series, if not set forth herein and any
additions, deletions or other changes to the Events of
Default set forth herein or to any provision of Article Five
that shall be applicable to the Securities of such series
(including a provision making any Event of Default set forth
herein inapplicable to the Securities of that series);
(11) any covenant solely for the benefit of the
Securities of such series and any additions, deletions or
other changes to the provisions of Article Ten or any
definitions relating to such Article that shall be applicable
to the Securities of such series (including a provision
making any Section of such Article inapplicable to the
Securities of such series);
(12) changes as to definitions contained herein,
whether or not contemplated by such definition;
(13) if the Securities of the series shall be issued
in whole or in part in the form of a Global Security or
Global Securities, the terms and conditions, if any, upon
which such Global Security or Global Securities may be
exchanged in whole or in part for other individual
Securities; and the Depositary for such Global Security or
Global Securities (if other than the Depositary specified in
Section 101 hereof);
(14) the subordination of the Securities of such
series to any other indebtedness of the Company, including
without limitation, the Securities of any other series;
(15) the applicability, if any, of Sections 1202 or
1203 to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the
provisions of Article Twelve;
(16) the issuance of Securities, even though such
Securities are not registered under the Securities Act, with
or without provisions for the exchange for securities so
registered or other similar or related provisions;
(17) securing the Securities;
(18) adding guarantors to the Securities and the
terms relating thereto including with respect to any
subordination thereof;
(19) modifying the provisions of Articles Eight and
Nine;
(20) whether Securities of the series are to be
issuable as Registered Securities, Bearer Securities (with or
without coupons) or both, any restrictions applicable to the
offer, sale or delivery of Bearer Securities and the terms
upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations);
(21) adding to or modifying the terms governing
redemption of the Securities; and
(22) any other terms of the series, which shall not
be inconsistent with the provisions of this Indenture, all
upon such terms as may be determined in or pursuant to a
Board Resolution or in or pursuant to a supplemental
indenture with respect to such series.
All Securities of the same series shall be substantially
identical in tenor and effect, except as to denomination.
The form of the Securities of each series shall be
established pursuant to the provisions of this Indenture in or
pursuant to the Board Resolution or in or pursuant to the supplemental
indenture creating such series. The Securities of each series shall be
distinguished from the Securities of each other series in such manner,
reasonably satisfactory to the Trustee, as the Board of Directors may
determine.
Unless otherwise provided with respect to Securities of a
particular series, the Securities of any series may only be issuable
in registered form, without coupons.
Any terms or provisions in respect of the Securities of any
series issued under this Indenture may be determined pursuant to this
Section by providing in a Board Resolution or supplemental indenture
for the method by which such terms or provisions shall be determined.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations and currency as shall be provided in the provisions of
this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series. In the absence of any
such provisions with respect to the Securities of any series, the
Securities of that series shall be issuable only in fully registered
form in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the
Company by its Chairman, its President or a Vice President and
attested by its Secretary or an Assistant Secretary. The signature of
any of these officers on the Securities may be manual or facsimile
signatures of the present or any future such authorized officer and
may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices
prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities
executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with such Company Order
shall; and the Trustee shall, upon Company Order, authenticate and
make available for delivery such Securities as in this Indenture
provided and not otherwise.
Prior to any such authentication and delivery, the Trustee
shall be entitled to receive, in addition to any Officers' Certificate
and Opinion of Counsel required to be furnished to the Trustee
pursuant to Section 102, and the Board Resolution and any certificate
relating to the issuance of the series of Securities required to be
furnished pursuant to Section 202, an Opinion of Counsel to the effect
that:
(1) all instruments furnished to the Trustee conform
to the requirements of the Indenture and constitute
sufficient authority hereunder for the Trustee to
authenticate and deliver such Securities;
(2) the form and terms (or in connection with the
issuance of medium-term Securities under Section 311, the
manner of determining the terms) of such Securities have been
established in conformity with the provisions of this
Indenture;
(3) all laws and requirements with respect to the
execution and delivery by the Company of such Securities have
been complied with, the Company has the corporate power to
issue such Securities and such Securities have been duly
authorized and delivered by the Company and, assuming due
authentication and delivery by the Trustee, constitute legal,
valid and binding obligations of the Company enforceable in
accordance with their terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws
and legal principles affecting creditors' rights generally
from time to time in effect and to general equitable
principles, whether applied in an action at law or in equity)
and entitled to the benefits of this Indenture, equally and
ratably with all other Securities, if any, of such series
Outstanding; and
(4) such other matters as the Trustee may reasonably
request; and, if the authentication and delivery relates to a
new series of Securities created by an indenture supplemental
hereto, also stating that all laws and requirements with
respect to the form and execution by the Company of the
supplemental indenture with respect to that series of
Securities have been complied with, the Company has corporate
power to execute and deliver any such supplemental indenture
and has taken all necessary corporate action for those
purposes and any such supplemental indenture has been
executed and delivered and constitutes the legal, valid and
binding obligation of the Company enforceable in accordance
with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, fraudulent
conveyance, moratorium or other laws and legal principles
affecting creditors' rights generally from time to time in
effect
and to general equitable principles, whether applied in an
action at law or in equity).
The Trustee shall not be required to authenticate such
Securities if the issue thereof will adversely affect the Trustee's
own rights, duties or immunities under the Securities and this
Indenture.
Unless otherwise provided in the form of Security for any
series, all Securities shall be dated the date of their
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual
signature of an authorized officer, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and, upon receipt of the documents
required by Section 303, together with a Company Order, the Trustee
shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender
of the temporary Securities of such series at the office or agency of
the Company designated for such purpose pursuant to Section 1002,
without charge to the Holder. Upon surrender for cancelation of any
one or more temporary Securities the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of such series of authorized
denominations and of like tenor and terms. Until so exchanged, the
temporary Securities of such series shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 305. Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such
office and in any other office or agency designated pursuant to
Section 1002 (being herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of
Securities, or of Securities of a particular series, and for transfers
of Securities or of Securities of such series. Any such register shall
be in written form or any other form capable of being converted into
written form within a reasonable time. At all reasonable times the
information contained in such register or registers shall be available
for inspection by the Trustee. The Trustee is
hereby initially appointed as security registrar (the "Security
Registrar") for the purpose of registering Securities and transfers of
Securities as herein provided. The Company may at any time and from
time to time authorize any Person to act as Security Register in place
of the Trustee with respect to any series of Securities issued under
this Indenture.
Subject to Section 204, upon surrender for transfer of any
Security of any series, upon surrender for registration of transfer of
any Security at the office or agency of the Company designated
pursuant to Section 1002, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of such series
of any authorized denomination or denominations of a like aggregate
principal amount and Stated Maturity and of like tenor and terms.
Subject to Section 204, at the option of the Holder,
Securities of any series may be exchanged for other Securities of such
series of any authorized denominations and of a like aggregate
principal amount and Stated Maturity and of like tenor and terms, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Securities that the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in the form attached to the Security or
otherwise satisfactory to the Company and the Security Registrar, duly
executed, by the Holder thereof or his attorney duly authorized in
writing.
Unless otherwise provided in the Security to be transferred
or exchanged, no service charge shall be made for any registration of
transfer or exchange or redemption of Securities, but the Company may
(unless otherwise provided in such Security) require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107
not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security of any series during a period
beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of such series
selected for redemption under Section 1103 and ending at the close of
business on the day of such mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
None of the Company, the Trustee, any agent of 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.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee,
or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall
execute and upon Company Order the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu of any
such destroyed, lost or stolen Security, a replacement Security of
like tenor, series, Stated Maturity and principal amount, bearing a
number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a replacement Security, pay
such Security.
Upon the issuance of any replacement Security under this
Section, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided with respect to such Security
pursuant to Section 301, 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 at the office or agency
of the Company maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest may at the
Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto
pursuant to Section 308, to the address of such Person as it appears
in the Security Register or (ii) transfer to an account located in the
United States maintained by the payee.
Any interest on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
shall forthwith cease to be payable to
the Holder on the Regular Record Date by virtue of having been such
Holder, and such defaulted interest and (to the extent lawful)
interest on such defaulted interest at the rate borne by the
Securities (such defaulted interest and interest thereon herein
collectively called "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 any such
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 such Security and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements reasonably
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 (1) provided. Thereupon
the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
given in the manner provided for in Section 106, not less
than 10 days prior to such Special Record Date notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so given, such Defaulted
Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed
practicable by the Trustee.
If any installment of interest the Stated Maturity of which
is on or prior to the Redemption Date for any Security called for
redemption pursuant to Article Eleven is not paid or duly provided for
on or prior to the Redemption Date in accordance with the foregoing
provisions of this Section, such interest shall be payable as part of
the Redemption Price of such Securities.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon 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, that were
carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to and at the time of the due presentment of a
Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose
name any Security is registered in the Security Register as the owner
of such Security for the purpose of receiving payment of principal of
(and premium, if any), and (subject to Section 307) interest on such
Security and for all other purposes whatsoever, whether or not such
Security be overdue, and none of the Company, the Trustee or any agent
of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancelation.
All Securities surrendered for payment, redemption,
registration of transfer, conversion or exchange or credit against a
sinking fund shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by
it. The Company may at any time deliver to the Trustee for cancelation
any Securities previously authenticated and delivered hereunder that
the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the
Trustees) for cancelation any Securities previously authenticated
hereunder that the Company has not issued and sold, and all Securities
so delivered shall be promptly canceled by the Trustee. No Security
shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by
this Indenture. All canceled Securities held by the Trustee shall be
disposed of by the Trustee in accordance with its customary procedures
and certification of their disposal delivered to the Company unless by
Company Order the Company shall direct that canceled Securities be
returned to it. The Trustee shall provide the Company with a list of
all Securities that have been canceled from time to time as requested
by the Company.
SECTION 310. Computation of Interest.
Unless otherwise provided as contemplated in Section 301,
interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 311. Medium-term Securities.
Notwithstanding any contrary provision herein, if all
Securities of a series are not to be originally issued at one time, it
shall not be necessary for the Company to deliver to the Trustee an
Officers' Certificate, Board Resolution, supplemental indenture,
Opinion of Counsel or Company Request otherwise required pursuant to
Sections 202, 301 and 303 at or prior to the time of authentication of
each Security of such series if such documents are delivered to the
Trustee or its agent at or prior to the authentication upon original
issuance of the first Security of such series to be issued; provided
that any subsequent request by the Company to the Trustee to
authenticate Securities of such series upon original issuance shall
constitute a representation and warranty by the Company that as of the
date of such request, the statements made in the Officers' Certificate
delivered pursuant to Section 102 shall be true and correct as if made
on such date.
An Officers' Certificate, supplemental indenture or Board
Resolution delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that
Securities which are the subject thereof will be authenticated and
delivered by the Trustee or its agent on original issue from time to
time upon the telephonic or written order of persons designated in
such Officers' Certificate, Board Resolution or supplemental indenture
(any such telephonic instructions to be confirmed promptly in writing
by such persons) and that such persons are authorized to determine,
consistent with such Officers' Certificate, supplemental indenture or
Board Resolution, such terms and conditions of said Securities as are
specified in such Officers' Certificate, supplemental indenture or
Board Resolution.
SECTION 312. 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 identification numbers
printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee of any change in the "CUSIP" numbers.
SECTION 313. Global Securities.
(a) Each Global Security authenticated under this
Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Security or a
nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this
Indenture.
(b) Notwithstanding any other provision of this
Indenture, no Global Security may be exchanged in whole or in
part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global
Security or a nominee thereof unless (i) such Depositary (A)
has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (B) has
ceased to be a clearing agency registered as such under the
Exchange Act or announces an intention permanently to cease
business or does in fact do so or (ii) there shall have
occurred and be continuing an Event of Default with respect
to such Global Security.
(c) If any Global Security is to be exchanged for
other Securities or canceled in whole, it shall be
surrendered by or on behalf of the Depositary or its nominee
to the Trustee, as Security Registrar, for exchange or
cancelation, as provided in this Article Three. If any Global
Security is to be exchanged for other Securities or canceled
in part, or if another Security is to be exchanged in whole
or in part for a beneficial interest in any Global Security,
in each case, as provided in Section 305, then either (i)
such Global Security shall be so surrendered for exchange or
cancelation, as provided in this Article Three or (ii) the
principal amount thereof shall be reduced or increased by an
amount equal to the portion thereof to be so exchanged or
canceled, or equal to the principal
amount of such other Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of
an appropriate adjustment made on the records of the Trustee,
as Security Registrar, whereupon the Trustee, in accordance
with the applicable procedures, shall instruct the Depositary
or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or
adjustment of a Global Security, the Trustee shall, subject
to Section 305 and as otherwise provided in this Article
Three, authenticate and deliver any Securities issuable in
exchange for such Global Security (or any portion thereof) to
or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative.
Upon the request of the Trustee in connection with the
occurrence of any of the events specified in the preceding
paragraph, the Company shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the
form of Global Securities. The Trustee shall be entitled to
rely upon any order, direction or request of the Depositary
or its authorized representative which is given or made
pursuant to this Article Three if such order, direction or
request is given or made in accordance with the applicable
procedures.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu
of, a Global Security or any portion thereof, whether
pursuant to this Article Three or otherwise, shall be
authenticated and delivered in the form of, and shall be, a
registered Global Security, unless such Security is
registered in the name of a Person other than the Depositary
for such Global Security or a nominee thereof, in which case
such Registered Security shall be authenticated and delivered
in definitive, fully registered form, without interest
coupons.
(e) The Depositary or its nominee, as registered
owner of a Global Security, shall be the Holder of such
Global Security for all purposes under the Indenture and the
Registered Securities, and owners of beneficial interests in
a Global Security shall hold such interests pursuant to the
applicable procedures. Accordingly, any such owner's
beneficial interest in a Global Security will be shown only
on, and the transfer of such interest shall be effected only
through, records maintained by the Depositary or its nominee
or its agent members and such owners of beneficial interests
in a Global Security will not be considered the owners or
holders thereof.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to surviving rights of registration of
transfer or exchange of Securities
expressly provided for herein or pursuant hereto) 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 that have been destroyed, lost or stolen
and that have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment
money has theretofore been deposited in trust with
the Trustee or any Paying Agent or segregated and
held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the
Trustee for cancelation; or
(b) all such Securities not theretofore
delivered to the Trustee for cancelation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust
for such purpose United States dollars (or another
currency if applicable) in an amount sufficient to
pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee
for cancelation, for principal (and premium, if any)
and interest to the date of such deposit (in the
case of Securities that have become due and payable)
or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; 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. (Such Opinion of Counsel may, as to all
matters of fact, rely on, among other things, such Officers'
Certificate.)
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section
607 and, if money shall have been deposited with the Trustee pursuant
to subclause (b) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the second to the last paragraph of
Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the second to the last
paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 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 interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means with respect
to any series of Securities any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless such
event is either inapplicable to a particular series or it is
specifically deleted or modified in the supplemental indenture
creating such series of Securities or in the form of Security for such
series:
(a) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days;
(b) default in the payment of the principal of (or
premium, if any, on) any Security at its Stated Maturity,
upon repurchase, acceleration, optional redemption, required
repurchase or otherwise, or the failure to make an offer to
purchase as therein required;
(c) default in the payment of any sinking or
purchase fund or analogous obligation when the same becomes
due by the terms of the Securities of such series; or
(d) failure by the Company to perform or comply with
the provisions of Article Eight of this Indenture;
(e) default in the performance, or breach, of any
covenant or warranty of the Company under this Indenture in
respect of the Securities of such series other than a
covenant or warranty in respect of the Securities of such
series, a default in whose performance or whose breach is
specifically dealt with in (a), (b), (c) or (d) above) and
continuance of such default or breach, for a period of 90
days after specified written notice thereof has been given to
the Company by the
Trustee or to the Company and the Trustee by the Holders of
at least 25% of the aggregate principal amount of the
Outstanding Securities of such series;
(f) the entry by a court having jurisdiction in the
premises of (i) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under U.S.
bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal, State, or foreign bankruptcy,
insolvency, or other similar law or (ii) a decree or order
adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of
the Company under U.S. bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal, State, or
foreign bankruptcy, insolvency, or similar law, or appointing
a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of
any substantial part of the property or assets of the Company
or ordering the winding up or liquidation of the affairs of
the Company and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in
effect for a period of 90 consecutive days;
(g) (i) the commencement by the Company of a
voluntary case or proceeding under U.S. bankruptcy laws, as
now or hereafter constituted, or any other applicable
Federal, State, or foreign bankruptcy, insolvency or other
similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or (ii) the consent by
the Company to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding
under U.S. bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal, State or foreign bankruptcy,
insolvency, or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against the
Company, or (iii) the filing by the Company of a petition or
answer or consent seeking reorganization or relief under U.S.
bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal, State, or foreign bankruptcy,
insolvency or other similar law, or (iv) the consent by the
Company to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of the property or assets
of the Company, or the making by the Company of an assignment
for the benefit of creditors, or (v) the admission by the
Company in writing of its inability to pay its debts
generally as they become due, or (vi) the taking of corporate
action by the Company in furtherance of any such action; or
(h) any other Event of Default provided in the
supplemental indenture under which such series of Securities
is issued or in the form of Security for such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(f) or 501(g)) occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Securities may declare the
principal amount of all the Outstanding Securities and any accrued and
unpaid interest on all such Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon
any such declaration such principal amount and any accrued and unpaid
interest on all such Securities shall become immediately due and
payable. If an Event of Default specified in Section 501(f) or 501(g)
occurs and is continuing, then the principal amount of all the
Securities shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holder.
At any time after such a declaration of acceleration has
been made with respect to the Securities of any series and before a
judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article, the Holders of a
majority in principal amount of the Outstanding Securities of such
series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on the
Securities of such series,
(B) all unpaid principal of (and
premium, if any, on) any Securities of such series
that have become due otherwise than by such
declaration of acceleration, and interest thereon
at the rate or rates prescribed therefor by the
terms of the Securities of such series, to the
extent that payment of such interest is lawful,
(C) interest on overdue interest at the
rate or rates prescribed therefor by the terms of
the Securities of such series to the extent that
payment of such interest is lawful, and
(D) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to such
series of Securities, other than the nonpayment of the
principal of the Securities of such series that have become
due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Debt and Suits for Enforcement by
Trustee.
The Company covenants that if an Event of Default specified
in Section 501(a), (b) or (c) occurs, the Company will, upon demand of
the Trustee, pay to the Trustee for the benefit of the Holders of such
Securities (or the Holders of any series in the case of 501(c)), the
whole amount then due and payable on such Securities (or on the
Securities of any such series in the case of 501(c)) for principal
(and premium, if any) and interest, and interest on any overdue
principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon any overdue
installment of interest, at the such rate or rates prescribed therefor
by the terms of any such Security (or of Securities of any such series
in the case of 501(c)) by the Securities,
and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other
obligor upon the Securities and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the
Company or any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to any series of
Securities occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of
any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other similar judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of
the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or
interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount
of principal (and premium, if any) and interest owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities.
All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the Trustee
without the possession of any of the Securities of such series or the
production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name
and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Securities
of the series in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee with respect to a
series of Securities pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities of
such series and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee under Section 607;
SECOND: To holders of Senior Debt to the extent
required by Article 13;
THIRD: To the payment of the amounts then due and
unpaid upon the Securities of that series for principal of
(and premium, if any) and interest, in respect of which or
for the benefit of which such money has been collected,
ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities
for principal (and premium, if any) and interest,
respectively; and
FOURTH: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Securities of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with respect
to Securities of such series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series have made
written request to the Trustee to
institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority or more in principal
amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of
Securities of such series shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders of
Securities of such series, or to obtain or to seek to obtain priority
or preference over any other Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all the Holders of all Securities of such
series.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if
applicable, Article Twelve) and in such Security of the principal of
(and premium, if any) and (subject to Section 307) interest on such
Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and
in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the
last paragraph of Section 306, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount
of the Outstanding Securities 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, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture or any Security,
(2) the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such
direction, and
(3) the Trustee need not take any action that
might involve it in personal liability or be unjustly
prejudicial to the Holders not consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive (including by way
of consents obtained with a purchase of, or a tender or exchange offer
for, Securities) any past default hereunder and its consequences,
except a default
(1) in respect of the payment of the principal of
(or premium, if any) or interest on any Security of such
series, or in the payment of any sinking or purchase fund or
analogous obligation with respect to the Securities of such
series, or
(2) in respect of a covenant or provision hereof
that under Article Nine cannot be modified or amended without
the consent of the Holder of each Outstanding Security of
such series.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by such Holder's 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, 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 shall not
apply to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities of any series to
which the suit relates, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of, premium, if any,
or interest on any Security on or after the respective Stated Maturity
expressed in such Security.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(1) Except during the continuance of an Event of Default
with respect to any series of Securities,
(a) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture with respect to the Securities of such series, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(b) in the absence of bad faith on its part, the
Trustee may, with respect to Securities of such series, rely
conclusively, 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 that by any
provision hereof specifically are required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture.
(2) If an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise
with respect to the Securities of such series such of the rights and
powers vested in it by this Indenture, and use the same degree of care
and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
(3) 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
(a) this Subsection shall not be construed to
limit the effect of Subsection (1) of this Section;
(b) 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;
(c) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities
of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities
of such series; and
(d) the Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any Default
hereunder, the Trustee shall transmit in the manner and to the extent
provided in TIA Section 313(c), notice of such Default hereunder known
to the Trustee, unless such Default shall have been cured or waived;
provided, however, that, except in the case of a Default in the
payment of the principal of (or premium, if any) or interest on any
Security of such series or in the payment of any sinking or purchase
fund installment or analogous obligation with respect to Securities of
such series, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice
is in the interest of the Holders; and provided further that in the
case of any Default of the character specified in Section 501(e) with
respect to Securities of such series no such notice to Holders of such
series shall be given until at least 60 days after the occurrence
thereof.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) 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;
(3) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) 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 reasonable security or indemnity
against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(6) 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, note, other evidence of indebtedness 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
(7) 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 (other than an agent or
attorney who is an employee of the Trustee) appointed with
due care by it hereunder.
SECTION 604. Trustee Not Responsible for Recitals or
Issuance of Securities.
The recitals contained herein and in the Securities, except
for the Trustee's certificates of authentication, shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or
of the Securities, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility and Qualification
on Form T-1 supplied to the Company are true and accurate, subject to
the qualifications set forth therein. The Trustee shall not be
accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar 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 TIA Sections 310(b) and 311, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder shall, until
used or applied as herein provided, be held in trust for the purposes
for which it was received, but 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 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (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 may arise from or be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part or on the part
of its directors, officers, employees and agents, arising
out of or in connection with the acceptance or
administration of this trust, including the costs and
expenses of defending itself, and of indemnifying its
directors, officers, employees and agents, against any claim
or liability in connection with the exercise or performance
of any of the Trustee's powers or duties hereunder.
The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. The
obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements
and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. As security for the
performance of such obligations of the
Company, the Trustee shall have a claim prior to the Securities upon
all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and
premium, if any) or interest on particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(f) or
(g), the expenses (including the reasonable charges and expenses of
its counsel) of and the compensation for such services are intended to
constitute 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.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued
hereunder shall be subject to the provisions of Section 310(b) of the
Trust Indenture Act during the period of time provided for therein. 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 for purposes of the
conflicting interest provisions of such Section 310(b) (i) the
Securities of every other series issued under this Indenture, (ii)
every series of securities issued under the Indenture dated as of ,
between Teligent, Inc. and and (iii) every series of securities issued
under the Indenture dated as of , between Teligent, Inc. and . Nothing
herein shall prevent the Trustee from filing with the Commission the
application referred to in the second to last paragraph of Section
310(b) of the Trust Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder with respect
to each series of Securities, that shall be eligible to act as Trustee
under TIA Section 310(a)(1) and 310(a)(5) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of Federal, State, territorial or District of
Columbia 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. If at any time the
Trustee with respect to any series of Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 610. 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 in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign with respect to any
series of Securities at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have
been delivered
to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any
series of Securities at any time by Act of the Holders of
not less than a majority in principal amount of the
Outstanding Securities of that series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply
with the provisions of TIA Section 310(b) with
respect to any series of Securities after written
request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security of
that series for at least six months, or
(2) the Trustee shall cease to be
eligible under Section 609 with respect to any
series of Securities and shall fail to resign
after written request therefor by the Company or
by any such Holder who has been a bona fide Holder
of a Security for at least six months, or
(3) the Trustee shall become incapable
of acting with respect to any series of Securities
or
(4) the Trustee shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any
public officer shall take charge or control of the
Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may
remove the Trustee, with respect to the series, or in the case of
clause (4), with respect to all series or (ii) subject to TIA Section
315(e), 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 removal of the Trustee and the appointment of a
successor Trustee with respect to the series, or, in the case of
clause (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Securities, or if a
vacancy shall occur in the office of Trustee with respect to any
series of Securities for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee for that series
of Securities. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
with respect to such series of Securities shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with
respect to such series and supersede the successor Trustee appointed
by the Company. 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 that 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.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor
Trustee to the Holders of Securities in the manner provided for in
Section 106. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
SECTION 611. 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 with respect
to any series as to which it is resigning or being removed as Trustee
and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the 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. Upon reasonable request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, the predecessor Trustee and each successor Trustee with
respect to the Securities of any applicable series shall execute and
deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the predecessor Trustee
with respect to the Securities of any series as to which the
predecessor Trustee is not being succeeded shall continue to be vested
in the predecessor Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be Trustee of a trust
or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee.
No successor Trustee with respect to any series of
Securities shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible with
respect to that series under this Article.
SECTION 612. 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
Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities. In case at that time any of the Securities shall not have
been authenticated, any successor Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the
name of the successor Trustee. In all such cases such certificates
shall have the full force and effect that this Indenture provides for
the certificate of authentication of the Trustee; provided, however,
that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 613. Conflicting Interests.
The Trustee shall be subject to and comply with the
provisions of Section 310(b) of the TIA.
SECTION 614. Preferential Collection of Claims Against
Issuers.
The Trustee shall comply with Section 311(a) of the TIA,
excluding any creditor relationship listed in Section 311(b) of the
TIA. If the present or any future Trustee shall resign or be removed,
it shall be subject to Section 311(a) of the TIA to the extent
provided therein.
SECTION 615. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding
the Trustee, with the approval of the Company, may appoint an
Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia,
authorized under such laws to act as an Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and, if
other than the Company itself, subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and, if other than the Company,
to the Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and, if other than the Company, to the Company
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee, with the approval of the Company, may appoint a
successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by
first-class mail, postage prepaid, to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve, as
their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent
(other than an Authenticating Agent appointed at the request of the
Company from time to time) reasonable compensation for its services
under this Section, and the Trustee shall be entitled to be reimbursed
for such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the
following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[ ],
by
----------------------------
As Authenticating Agent
Date: by
-------- ----------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company
or the Trustee or any agent of either of them 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 TIA Section
312, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after of each year commencing with the first
after the first issuance of Securities, the Trustee shall transmit to
the Holders, in the manner and to the extent provided in TIA Section
313(c), a brief report dated as of such if required by TIA Section
313(a).
SECTION 703. Reports by Company.
The Company shall:
(1) whether or not the Company is subject to Section 13(a) or
15(d) of the Exchange Act or any successor provision thereto, file
with the Commission the annual reports, quarterly reports and other
documents that the Company would have been required to file with the
Commission pursuant to such Section 13(a), 15(d) or any successor
provision thereto if the Company were subject thereto and shall file
such documents with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Company would have been
required to file them;
(2) whether or not the Company is subject to Section 13(a) or
15(d) of the Exchange Act or any successor provision thereto, within
15 days of each Required Filing Date, file with the Trustee copies of
the annual reports, quarterly reports and other documents (without
exhibits) that the Company would have been required to file with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act or
any successor provisions thereto if the Company was subject thereto:
(3) 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
(4) transmit by mail to all Holders, in the manner and to the
extent provided in TIA Section 313(c), within 15 days after the filing
thereof with the Commission, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1), (2) and (3) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
If the Company is not permitted under the Exchange Act to
file with the Commission such reports and other information referred
to in Section 703(1), the Company shall promptly upon written request
supply copies of such documents (without exhibits) to prospective
purchasers of the Securities or their representatives.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any
other Person or sell, convey, assign, transfer, lease or otherwise
dispose of all or substantially all of its property and assets to any
Person, unless:
(a) either (i) the Company shall be the continuing
corporation or (ii) the corporation (if other than the
Company) formed by such consolidation or into which the
Company is merged, or the Person that acquires, by sale,
assignment, conveyance, transfer, lease or disposition, all
or substantially all of the property and assets of the
Company and its Subsidiaries taken as a whole (such
corporation or Person, the "Surviving Entity"), shall be a
corporation organized and validly existing under the laws of
the United States of America, any political subdivision
thereof or any State thereof or the District of Columbia, and
shall expressly assume, by a supplemental indenture, the due
and punctual payment of the principal of (and premium, if
any) and interest on all the Securities and the performance
of the Company's covenants and obligations under this
Indenture;
(b) immediately before and after giving effect to
such transaction, no Default or Event of Default shall have
occurred and be continuing or would result therefrom; and
(c) the Company or such Person 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.
Notwithstanding the foregoing, the Company may merge with an
Affiliate incorporated or organized for the sole purpose of
reincorporating or reorganizing the Company in another jurisdiction to
realize tax or other benefits provided such merger meets the
requirements of clauses (a), (b) and (c) of the preceding paragraphs.
Upon any transaction or series of transactions that are of
the type described in, and are effected in accordance with, the
foregoing paragraphs, the Surviving Entity (if other than the Company)
shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture and the Securities with
the same effect as if such Surviving Entity had been named as the
Company herein; and when a Surviving Person duly assumes all of the
obligations and
covenants of the Company pursuant to this Indenture and the
Securities, except in the case of a lease, the predecessor Person
shall be relieved of all such obligations.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with or merger of 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 801, the
successor Person 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 Person had been named as the Company
herein, and in the event of any such conveyance or transfer, the
Company (which term shall for this purpose mean the Person named as
the "Company" in the first paragraph of this Indenture or any
successor Person that shall theretofore become such in the manner
described in Section 801), except in the case of a lease, shall be
discharged of all obligations and covenants under this Indenture and
the Securities and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without notice to or the consent of any Holders, the
Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may amend, waive or supplement this
Indenture and Securities and the Control Agreement and (if necessary)
enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company contained herein, and in the
Securities, or
(2) to add to the covenants of the Company or to
surrender any right or power herein conferred upon the
Company for the benefit of the Holders of the Securities of
any or all series (and if such covenants or the surrender of
such right or power are to be for the benefit of less than
all series of Securities, stating that such covenants are
expressly being included or such surrenders are expressly
being made solely for the benefit of one or more specified
series), or
(3) to add any additional Events of Default in
respect of the Securities of any or all series (and if such
additional Events of Default are to be in respect of less
than all series of Securities, stating that such Events of
Default are expressly being included solely for the benefit
of one or more specified series), or
(4) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee pursuant to the
requirements of Section 611, or
(5) to cure any ambiguity, to correct or supplement
any provision herein that may be inconsistent with any other
provision herein, or to add any other provisions with respect
to matters or questions arising under this Indenture;
provided that such action shall not adversely affect the
interests of the Holders of Securities of any series in any
material respect, or
(6) to secure the Securities or to add guarantors to the
Securities, or
(7) to provide for uncertificated Securities in
addition to or in place of certificated Securities, or
(8) to change or eliminate any of the provisions
herein; provided that any such change or elimination shall
become effective only when there is not Outstanding any
Security created prior to the execution of such amendment,
waiver or supplemental indenture that is entitled to the
benefit of such provision, or
(9) to establish any form of Security, as provided
in Article Two, and to provide for the issuance of any series
of Securities as provided in Article Three and to set forth
the terms thereof or to add to the rights of the Holders of
the Securities of any series; or
(10) to comply with the requirements of the
Commission in order to effect or maintain the qualification
of this Indenture under the Trust Indenture Act.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent (including consents obtained with a
purchase of, or a tender or exchange offer for, Securities) of the
Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental
indenture or indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may amend, waive or supplement this
Indenture, and (if necessary) enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders
under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent (including consents obtained with
a purchase of, or a tender or exchange offer for, Securities) of the
Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of
or any installment of interest on any Security, or reduce the
principal amount thereof (or premium, if any) or the rate of
interest thereon or change the coin or currency in which any
Security or any premium or the interest thereon is payable,
or impair the right to institute suit for the enforcement of
any such payment after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any
waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their
consequences provided for in this Indenture, or
(3) subordinate in right of payment, or otherwise
subordinate, the Securities to any other Debt (other than
Senior Debt), or
(4) modify any provision of this Indenture relating
to the calculation of accreted value, or
(5) modify any of the provisions of this Section or
Sections 513, except to increase any such percentage or to
provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture.
The Trustee may, but shall not (except to the extent required in the
case of a supplemental indenture entered into under Section 901(4) or
901(10)) be obligated to, enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for
all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the
Article shall conform to the requirements of the Trust Indenture Act
as then in effect if this Indenture shall then be required to be
qualified under the TIA.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture.
If the Company shall so determine, replacement Securities so modified
as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest.
With respect to each series of Securities, the Company will
duly and punctually pay the principal of (and premium, if any) and
interest on such Securities in accordance with their terms and this
Indenture, and will duly comply with all the other terms, agreements
and conditions contained in, or made in the Indenture for the benefit
of, the Securities of such series.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York, an office
or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of
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 Trustee's New York Corporate Trust Office at 40 Broad Street, 5th
Floor, Suite 550, New York, New York 10004 shall be such office or
agency of the Company, unless the Company shall designate and maintain
some other office or agency for one or more of such purposes. 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 or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York)
where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind any such designation;
provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or
agency in The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or
rescission and any change in the location of any such other office or
agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
for any series of Securities, it will, on or before each due date of
the principal of (or premium, if any) or interest on, any of the
Securities of such series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal
of (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
for any series of such Securities, it will, on or before each due date
of the principal of (or premium, if any) or interest any Securities of
such series, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of such action
or any failure so to act.
The Company will cause each Paying Agent (other than the
Company or the Trustee for any series of Securities) to execute and
deliver to the Trustee an instrument in which such Paying Agent shall
agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities
of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of such
series) in the making of any payment of principal (and
premium, if any) or interest on the Securities of such
series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture with respect to any
series of Securities or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent in respect of each and every
series of Securities as to which it seeks to discharge this Indenture
or, if for any other purpose, all sums so held in trust by the Company
in respect of all Securities, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
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 of any series and
remaining unclaimed for two years after such principal, premium or
interest has become due and payable shall be paid to the Company
on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
The Company initially authorizes the Trustee to act as
Paying Agent for the Securities on its behalf. The Company may at any
time and from time to time authorize one or more Persons to act as
Paying Agent in addition to or in place of the Trustee with respect to
any series of Securities issued under this Indenture.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement signed by the
principal executive officer, principal financial officer or principal
accounting officer of the Company, stating that
(1) a review of the activities of the Company during
such year and of the Company's performance under this
Indenture and under the terms of the Securities has been made
under his supervision; and
(2) to the best of his knowledge, based on such
review, the Company has complied with all conditions and
covenants under this Indenture through such year, or, if
there has been a Default in the fulfillment of any such
obligation, specifying each such Default known to him and the
nature and status thereof (other than with respect to Debt in
the principal amount of less than $15,000,000).
For purposes of this Section 1004, compliance shall be
determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
The Company may reserve the right to redeem and pay before
Stated Maturity all or any part of the Securities of any series,
either by optional redemption, sinking or purchase fund or analogous
obligation or otherwise, by provision therefor in the form of Security
for such series established and approved pursuant to Section 202 and
on such terms as are specified in such form or in the Board Resolution
or indenture supplemental hereto with respect to Securities of such
series as provided in Section 301 Redemption of Securities of any
series shall be made in accordance with the terms of such Securities
and, to the extent that this Article does not conflict with such
terms, the succeeding Sections of this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms
of such securities or elsewhere in this Indenture, or (ii) pursuant to
an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of like tenor and terms of
any series are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee from the Outstanding Securities of such
series not previously called for redemption in compliance with the
requirements of the principal national securities exchange, if any, on
which the Securities are listed or, if the Securities are not then
listed on a national securities exchange, on a pro rata basis or by
lot or any other method as the Trustee shall deem fair and appropriate
and that may provide for the selection for redemption of portions of
the principal of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that
series. Unless otherwise provided in the terms of a particular series
of Securities, the portions of the principal of Securities so selected
for partial redemption shall be equal to the minimum authorized
denomination of the Securities of such series, or an integral multiple
thereof, and the principal amount which remains outstanding shall not
be less than the minimum authorized denomination for Securities of
such series. If less than all the Securities of unlike tenor and terms
of a series are to be redeemed, the particular Securities to be
redeemed shall be selected by the Company.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of
Securities shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such
Security that has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided
for in Section 106 not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued
interest to the Redemption Date payable as provided in
Section 1106, if any,
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification including CUSIP
numbers (and, in the case of a
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) in case any Security is to be redeemed in part
only, the notice that relates to such Security shall state
that on and after the Redemption Date, upon surrender of such
Security, the holder will receive, without charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price
(and accrued interest, if any, to the Redemption Date payable
as provided in Section 1106) will become due and payable upon
each such Security, or the portion thereof, to be redeemed,
and that interest thereon will cease to accrue on and after
said date,
(6) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and
accrued interest, if any, and
(7) that the redemption is on account of a sinking
or purchase fund, or other analogous obligation, if that be
the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of
the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to 12:00 noon, New York City time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and accrued interest on,
all the Securities that are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified (together with
accrued interest, if any, to the Redemption Date), and from and after
such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date
shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions
of Section 307.
On and after any Redemption Date, if money sufficient to pay
the Redemption Price of any accrued and unpaid interest on Securities
called for redemption shall have been made available in accordance
with Section 1105, the Securities called for redemption will cease to
accrue interest and the only right of the Holders of such
Securities will be to receive payment of the Redemption Price of and,
subject to the provision in the preceding paragraph, any accrued and
unpaid interest on such Securities to the Redemption Date.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if
any) shall, until paid, bear interest from the Redemption Date at the
rate borne by the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security that is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such
purpose pursuant to Section 1002 (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or such Holders attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 1108. Provisions with Respect to Any Sinking Funds.
Unless the form or terms of any series of Securities shall
provide otherwise, in lieu of making all or any part of any mandatory
sinking fund payment with respect to such series of Securities in
cash, the Company may at its option (1) deliver to the Trustee for
cancelation any Securities of such series theretofore acquired by the
Company, or (2) receive credit for any Securities of such series (not
previously so credited) acquired by the Company and theretofore
delivered to the Trustee for cancelation or redeemed by the Company
other than through the mandatory sinking fund, and if it does so then
(i) Securities so delivered or credited shall be credited at the
applicable sinking fund Redemption Price with respect to Securities of
such series, and (ii) on or before the 60th day next preceding each
sinking fund Redemption Date with respect to such series of
Securities, the Company will deliver to the Trustee (A) an Officers'
Certificate specifying the portions of such sinking fund payment to be
satisfied by payment of cash and by delivery or credit of Securities
of such series acquired by the Company or so redeemed, and (B) such
Securities so acquired, to the extent not previously surrendered. Such
Officers' Certificate shall also state the basis for such credit and
that the Securities for which the Company elects to receive credit
have not been previously so credited and were not redeemed by the
Company through operation of the mandatory sinking fund, if any,
provided with respect to such Securities and shall also state that no
Event of Default with respect to Securities of such series has
occurred and is continuing All Securities so delivered to the Trustee
shall be canceled by the Trustee and no Securities shall be
authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or
optional) with respect to any series of Securities made in cash plus
any unused balance of any preceding sinking fund payments with respect
to Securities of such series made in cash shall exceed $50,000 (or a
lesser sum if the Company shall so request), unless otherwise provided
by the terms of such series of Securities, that cash shall be applied
by the Trustee on the sinking fund Redemption Date with respect to
Securities of such series next following the date of such payment to
the redemption of Securities of such series at the applicable
sinking fund Redemption Price with respect to Securities of such
series, together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 1106. The Trustee
shall select, in the manner provided in Section 1103, for redemption
on such sinking fund Redemption Date a sufficient principal amount of
Securities of such series to utilize that cash and shall thereupon
cause notice of redemption of the Securities of such series for the
sinking fund to be given in the manner provided in Section 1104 (and
with the effect provided in Section 1106) for the redemption of
Securities in part at the option of the Company. Any sinking fund
moneys not so applied or allocated by the Trustee to the redemption of
Securities of such series shall be added to the next cash sinking fund
payment with respect to Securities of such series received by the
Trustee and, together with such payment, shall be applied in
accordance with the provisions of this Section 1108. Any and all
sinking fund moneys with respect to Securities of any series held by
the Trustee at the Maturity of Securities of such series, and not held
for the payment or redemption of particular Securities of such series,
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 such series at Maturity.
On or before each sinking fund Redemption Date provided with
respect to Securities of any series, the Company shall pay to the
Trustee in cash a sum equal to all accrued interest, if any, to the
date fixed for redemption on Securities to be redeemed on such sinking
fund Redemption Date pursuant to this Section 1108.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301,
provision is made for either or both of (a) defeasance of the
Securities of or within a series under Section 1202 or (b) covenant
defeasance of the Securities of or within a series under Section 1203,
then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article (with such
modifications thereto as may be specified pursuant to Section 301 with
respect to any Securities), shall be applicable to such Securities,
and the Company may at its option by Board Resolution, at any time,
with respect to such Securities, elect to have Section 1202 (if
applicable) or Section 1203 (if applicable) be applied to such
Outstanding Securities upon compliance with the conditions set forth
below in this Article.
SECTION 1202. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect
to any Securities of or within a series, the Company shall be deemed
to have been discharged from its obligations with respect to such
Outstanding Securities on the date the conditions set forth in Section
1204 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding
Securities and any coupons appertaining thereto, which shall
thereafter be deemed to be "Outstanding" only for the purposes of
Section 1205 and the other Sections of this Indenture referred to in
clauses (A) and (B) of this Section, and to have satisfied all its
other obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such
Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (A)
the rights of Holders of such Outstanding Securities and any coupons
appertaining thereto to receive, solely from the trust fund described
in Section 1204 and as more fully set forth in such Section, payments
in respect of the principal of (and premium, if any) and interest, if
any, on such Securities and any coupons appertaining thereto when such
payments are due, (B) the Company's obligations with respect to such
Securities under Sections 305, 306, 1002 and 1003, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D)
this Article. Subject to compliance with this Article Twelve, the
Company may exercise its option under this Section notwithstanding the
prior exercise of its option under Section 1203 with respect to such
Securities and any coupons appertaining thereto.
SECTION 1203. Covenant Defeasance. Upon the Company's
exercise of the above option applicable to this Section with respect
to any Securities of or within a series, the Company shall be released
from its obligations under Section 1004, and, if specified pursuant to
Section 301, its obligations under any other covenant, with respect to
such Outstanding Securities and any coupons appertaining thereto on
and after the date the conditions set forth in Section 1204 are
satisfied (hereinafter, "covenant defeasance"), and such Securities
and any coupons appertaining thereto shall thereafter be deemed to be
not "Outstanding" for the purposes of any direction, waiver, consent
or declaration or Act of Holders (and the consequences of any thereof)
in connection with Section 1004, or such other covenant, but shall
continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to
such Outstanding Securities and any coupons appertaining thereto, the
Company may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant
or by reason of reference in any such Section or such other covenant
to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of
Default under Section 501(e) or 501(h) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture
and such Securities and any coupons appertaining thereto shall be
unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application of
Section 1202 or Section 1203 to any Outstanding Securities of or
within a series and any coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 who shall agree to
comply with the provisions of this Article Fourteen
applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the
Holders of such Securities and any coupons appertaining
thereto, (1) an amount (in such currency, currencies of
currency unit in which such Securities and any coupons
appertaining thereto are then specified as payable at Stated
Maturity), or (2) U.S. Government Obligations applicable to
such Securities and coupons appertaining thereto (determined
on the basis of the currency, currencies or currency unit in
which such Securities and coupons appertaining thereto are
then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment of
principal of (and premium, if any) and interest, if any, on
such Securities and any coupons appertaining thereto, money
in an amount, or (3) a combination thereof, in any case, in
an amount, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of (and premium, if any) and interest, if
any, on such Outstanding Securities and any coupons
appertaining thereto on the Stated Maturity of such principal
or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any coupons
appertaining thereto on the day on which such payments are
due and payable in accordance with the terms of this
Indenture and of such Securities and any coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is
bound.
(c) No Event of Default or event which with notice
or lapse of time or both would become an Event of Default
with respect to such Securities and any coupons appertaining
thereto shall have occurred and be continuing on the date of
such deposit or, insofar as Sections 501(f) and 501(g) are
concerned, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1202,
the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will
be subject to Federal income tax on the same amounts, in the
same manner and at the same time as would have been the case
if such defeasance had not occurred.
(e) In the case of an election under Section 1203,
the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding
Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance under
Section 1202 or the covenant defeasance under
Section 1203 (as the case may be) have been complied with and
an Opinion of Counsel to the effect that either (i) as a
result of a deposit pursuant to subsection (a) above and the
related exercise of the Company's option under Section 1202
or Section 1203 (as the case may be), registration is not
required under the Investment Company Act of 1940, as deposit
or by the Trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this
Section, such defeasance or covenant defeasance shall be
effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 301.
SECTION 1205. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the penultimate paragraph of Section
1003, all money and U.S. Government Obligations (or other property as
may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1205, the "Trustee")
pursuant to Section 1204 in respect of any Outstanding Securities of
any series and any coupons appertaining thereto shall be held in trust
and applied by the Trustee, in accordance with the provisions of such
Securities and any coupons appertaining thereto 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 Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 1204 or the
principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the
holders of such Outstanding Securities and any coupons appertaining
thereto.
Anything in this Article to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or U.S. Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section
1204 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. Agreement To Subordinate. The Company agrees,
and each Holder by accepting a Security agrees, that the Debt
evidenced by the Securities is subordinated in right of payment, to
the extent and in the manner provided in this Article XIII, to the
payment when due of all Senior Debt of the Company and that the
subordination is for the benefit of and enforceable by the holders of
such Senior Debt. The Securities shall in all respects rank pari passu
with any future Senior Subordinated Debt and senior to all existing
and future junior subordinated Debt of the Company, and only Senior
Debt shall rank senior to the Securities in accordance with the
provisions set forth herein. All provisions of this Article 13 shall
be subject to Section 1312.
SECTION 1302. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company upon a total or
partial liquidation, dissolution or winding up of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its Property:
(1) the holders of Senior Debt will be entitled to
receive payment in full in cash before the Holders of the
Securities are entitled to receive any payment of principal
of or interest on the Securities, except that Holders of
Securities may receive and retain shares of stock and any
debt securities that are subordinated to the Senior Debt to
at least the same extent as the Securities; and
(2) until the Senior Debt is paid in full in cash,
any distribution to which Holders of the Securities would be
entitled but for this Article 13 will be made to holders of
the Senior Debt as their interests may appear.
SECTION 1303. Default on Senior Debt. The Company may not
pay principal of, or premium, if any, or interest on, the Securities,
or make any deposit pursuant to Section 1202, and may not repurchase,
redeem or otherwise retire any Securities (collectively, "pay the
Securities") if (a) any principal, premium or interest in respect of
any Senior Debt is not paid within any applicable grace period
(including at maturity) or (b) any other default on Senior Debt occurs
and the maturity of such Senior Debt is accelerated in accordance with
its terms unless, in either case, (1) the default has been cured or
waived and any such acceleration has been rescinded or (2) such Senior
Debt has been paid in full in cash; provided, however, that the
Company may pay the Securities without regard to the foregoing if the
Company and the Trustee receive written notice approving such payment
from the Representative of such issue of Senior Debt. During the
continuance of any default (other than a default described in clause
(a) or (b) of the preceding sentence) with respect to any Designated
Senior Debt pursuant to which the maturity thereof may be accelerated
immediately without further notice (except any notice required to
effect the acceleration) or the expiration of any applicable grace
period, the Company may not pay the Securities for a period (a
"Payment Blockage Period") commencing upon the receipt by the Company
and the Trustee of written notice of such default from the
Representative of the holders of such Designated Senior Debt
specifying an election to effect a Payment Blockage Period (a "Payment
Blockage Notice") and ending 179 days thereafter (unless such Payment
Blockage Notice is earlier terminated (a) by written notice to the
Trustee and the Company from the Representative that gave such Payment
Blockage Notice, (b) because such default is no longer continuing or
(c) because such Designated Senior Debt has been repaid in full in
cash). Unless the holders of such Designated Senior Debt or the
Representative of such holders have accelerated the maturity of such
Designated Senior Debt and not rescinded such acceleration, the
Company may (unless otherwise prohibited as described in the first
sentence of this paragraph) resume payments on the Securities after
the end of such Payment Blockage Period. Not more than one Payment
Blockage Notice with respect to all issues of Designated Senior Debt
may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to one or more
issues of Designated Senior Debt during such period.
SECTION 1304. Acceleration of Payment of Securities. If
payment of the Securities is accelerated when any Designated Senior
Debt is outstanding, the Company may not pay the Securities until
three Business Days after the Representatives of all issues of
Designated Senior Debt receive notice of such acceleration and,
thereafter, may pay the Securities only if this Indenture otherwise
permits payment at that time.
SECTION 1305. When Distribution Must Be Paid Over. If a
distribution is made to Holders that because of this Article XIII
should not have been made to them, the Holders who receive the
distribution shall hold it in trust for holders of Senior Debt and pay
it over to them as their interests may appear.
SECTION 1306. Subrogation. After all Senior Debt is paid in
full and until the Securities are paid in full, Holders shall be
subrogated to the rights of holders of Senior Debt to receive
distributions applicable to Senior Debt. A distribution made under
this Article XIII to holders of Senior Debt that otherwise would have
been made to Holders is not, as between the Company and Holders, a
payment by the Company on such Senior Debt.
SECTION 1307. Relative Rights. This Article XIII defines the
relative rights of Holders and holders of Senior Debt. Nothing in this
Indenture shall:
(1) impair, as between the Company and Holders, the
obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the
Securities in accordance with their terms; or
(2) prevent the Trustee or any Holder from
exercising its available remedies upon a Default or an Event
of Default, subject to the rights of holders of Senior Debt
to receive distributions otherwise payable to Holders.
SECTION 1308. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the subordination of
the Debt evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this
Indenture.
SECTION 1309. Rights of Trustee and Paying Agent.
Notwithstanding Section 1303, the Trustee or Paying Agent may continue
to make payments on the Securities and shall not be charged with
knowledge of the existence of facts that would prohibit the making of
any such payments unless, not less than two Business Days prior to the
date of such payment, a Trust Officer receives notice satisfactory to
it that payments may not be made under this Article XIII. The Company,
the Registrar or co-registrar, the Paying Agent, a Representative or a
holder of Senior Debt may give the notice; provided, however, that, if
an issue of Senior Debt has a Representative, only the Representative
may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee.
The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to
all the rights set forth in this Article XIII with respect to any
Senior Debt that may at any time be held by it, to the same extent as
any other holder of such Senior Debt; and nothing in Article VI shall
deprive the Trustee of any of its rights as such holder. Nothing in
this Article XIII shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1310. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to
their Representative (if any).
SECTION 1311. Article XIII Not To Prevent Events of Default
or Limit Right To Accelerate. The failure to make a payment pursuant
to the Securities by reason of any provision in this Article XIII
shall not be construed as preventing the occurrence of a Default.
Nothing in this Article XIII shall have any effect on the right of the
Holders or the Trustee to accelerate the maturity of the Securities.
SECTION 1312. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the
proceeds of U.S. Government Obligations held in trust under Article
XII by the Trustee for the payment of principal of and interest on the
Securities shall not be subordinated to the prior payment of any
Senior Debt or subject to the restrictions set forth in this Article
XIII, and none of the Holders shall be obligated to pay over any such
amount to the Company or any holder of Senior Debt or any other
creditor of the Company.
SECTION 1313. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article XIII, the Trustee and the
Holders shall be entitled to rely (i) upon any order or decree of a
court of competent jurisdiction in which any proceedings of the nature
referred to in Section 1302 are pending, (ii) upon a certificate of
the liquidating trustee or agent or other Person making such payment
or distribution to the Trustee or to the Holders or (iii) upon the
Representatives for the holders of Senior Debt for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other Debt of the
Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or
to this Article XIII. In the event that the Trustee determines, in
good faith, that evidence is required with respect to the right of any
Person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article XIII, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Debt held by such Person, the
extent to which such Person is entitled to participate in such payment
or distribution and other facts pertinent to the rights of such Person
under this Article 13, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
The provisions of Sections 601 and 603 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this
Article XIII.
SECTION 1314. Trustee To Effectuate Subordination. Each
Holder by accepting a Security authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Holders and
the holders of Senior Debt as provided in this Article XIII and
appoints the Trustee as attorney-in-fact for any and all such
purposes.
SECTION 1315. Trustee Not Fiduciary for Holders of Senior
Debt. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if
it shall mistakenly pay over or distribute to Holders or the Company
or any other Person, money or assets to which any holders of Senior
Debt shall be entitled by virtue of this Article 13 or otherwise.
SECTION 1316. Reliance by Holders of Senior Debt on
Subordination Provisions. Each Holder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and a consideration to each
holder of any Senior Debt, whether such Senior Debt was created or
acquired before or after the issuance of the Securities, to acquire
and continue to hold, or to continue to hold, such Senior Debt and
such holder of such Senior Debt shall be deemed conclusively to have
relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Debt.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and year
first above written.
TELIGENT, INC.
By
---------------------------------
Title:
FIRST UNION NATIONAL BANK
By
---------------------------------
Title:
TABLE OF CONTENTS
Page
PARTIES..............................................................1
RECITALS OF THE COMPANY..............................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions..........................................1
Act................................................................2
Additional Amounts.................................................2
Affiliate..........................................................2
Authenticating Agent...............................................2
Board of Directors.................................................2
Board Resolution...................................................2
Business Day.......................................................2
Commission.........................................................2
Company............................................................2
Company Request or Company Order...................................3
Corporate Trust Office.............................................3
Debt...............................................................3
Default............................................................3
Defaulted Interest.................................................3
Depositary.........................................................3
Designated Senior Debt.............................................3
Event of Default...................................................3
Exchange Act.......................................................3
Global Security....................................................3
Holder.............................................................3
Indenture or this Indenture........................................3
Interest...........................................................4
Interest Payment Date..............................................4
Maturity...........................................................4
Officers' Certificate..............................................4
Opinion of Counsel.................................................4
Original Issue Discount Security...................................4
Outstanding........................................................4
Paying Agent.......................................................5
Person.............................................................5
Predecessor Security...............................................5
Property...........................................................6
Redemption Date....................................................6
Redemption Price...................................................6
Regular Record Date................................................6
Representative.....................................................6
Responsible Officer................................................6
Securities Act.....................................................6
Security or Securities.............................................6
Security Register and Security Registrar...........................6
Senior Debt........................................................6
Special Record Date................................................6
Senior Subordinated Debt...........................................6
Stated Maturity....................................................7
Subsidiary.........................................................7
Trust Indenture Act or TIA.........................................7
Trust Officer......................................................7
Trustee............................................................7
U.S. Government Obligations........................................7
Vice President.....................................................8
Voting Stock.......................................................8
SECTION 102. Compliance Certificates and Opinions.................8
SECTION 103. Form of Documents Delivered to Trustee...............9
SECTION 104. Acts of Holders......................................9
SECTION 105. Notices, Etc., to Trustee and Company...............10
SECTION 106. Notice to Holders; Waiver...........................11
SECTION 107. Effect of Headings, Table of Contents and Recitals..11
SECTION 108. Successors and Assigns..............................11
SECTION 109. Separability Clause.................................11
SECTION 110. Benefits of Indenture...............................11
SECTION 111. Governing Law.......................................12
SECTION 112. Legal Holidays......................................12
SECTION 113. No Recourse Against Others..........................12
SECTION 114. Exhibits and Schedules..............................12
SECTION 115. Counterparts........................................12
SECTION 116. Judgment Currency...................................12
SECTION 117. Duplicate Originals.................................13
SECTION 118. Incorporation by Reference of TIA...................13
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.....................................13
SECTION 202. Forms of Securities.................................13
SECTION 203. Form of Trustee's Certificate of Authentication.....14
SECTION 204. Securities Issuable in the Form of a Global
Security..........................................14
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.....................................16
SECTION 302. Denominations.......................................19
SECTION 303. Execution, Authentication, Delivery and Dating......19
SECTION 304. Temporary Securities................................20
SECTION 305. Registration, Transfer and Exchange.................21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities....22
SECTION 307. Payment of Interest; Interest Rights Preserved......23
SECTION 308. Persons Deemed Owners...............................24
SECTION 309. Cancelation.........................................24
SECTION 310. Computation of Interest.............................25
SECTION 311. Medium-term Securities..............................25
SECTION 312. CUSIP Numbers.......................................25
SECTION 313. Global Securities...................................25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.............27
SECTION 402. Application of Trust Money..........................28
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default...................................28
SECTION 502. Acceleration of Maturity; Rescission and Annulment..30
SECTION 503. Collection of Debt and Suits for Enforcement by
Trustee.........................................31
SECTION 504. Trustee May File Proofs of Claim....................31
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities......................................32
SECTION 506. Application of Money Collected......................32
SECTION 507. Limitation on Suits.................................33
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..............................33
SECTION 509. Restoration of Rights and Remedies..................34
SECTION 510. Rights and Remedies Cumulative......................34
SECTION 511. Delay or Omission Not Waiver........................34
SECTION 512. Control by Holders..................................34
SECTION 513. Waiver of Past Defaults.............................35
SECTION 514. Waiver of Stay or Extension Laws....................35
SECTION 515. Undertaking for Costs...............................35
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.................36
SECTION 602. Notice of Defaults..................................37
SECTION 603. Certain Rights of Trustee...........................37
SECTION 604. Trustee Not Responsible for Recitals or Issuance of
Securities.......................................38
SECTION 605. May Hold Securities.................................38
SECTION 606. Money Held in Trust.................................38
SECTION 607. Compensation and Reimbursement......................38
SECTION 608. Disqualification; Conflicting Interests.............39
SECTION 609. Corporate Trustee Required; Eligibility.............40
SECTION 610. Resignation and Removal; Appointment of Successor...40
SECTION 611. Acceptance of Appointment by Successor..............41
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.........................................42
SECTION 613. Conflicting Interests...............................42
SECTION 614. Preferential Collection of Claims Against Issuers...42
SECTION 615. Appointment of Authenticating Agent.................42
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders........44
SECTION 702. Reports by Trustee..................................44
SECTION 703. Reports by Company..................................44
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.............................................45
SECTION 802. Successor Substituted...............................46
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders..47
SECTION 902. Supplemental Indentures with Consent of Holders.....48
SECTION 903. Execution of Supplemental Indentures................49
SECTION 904. Effect of Supplemental Indentures...................49
SECTION 905. Conformity with Trust Indenture Act.................49
SECTION 906. Reference in Securities to Supplemental Indentures..49
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and
Interest.........................................49
SECTION 1002. Maintenance of Office or Agency....................50
SECTION 1003. Money for Security Payments to Be Held in Trust....50
SECTION 1004. Statement by Officers as to Default................51
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article...........................52
SECTION 1102. Election to Redeem; Notice to Trustee..............52
SECTION 1103. Selection by Trustee of Securities to Be Redeemed..52
SECTION 1104. Notice of Redemption...............................53
SECTION 1105. Deposit of Redemption Price........................53
SECTION 1106. Securities Payable on Redemption Date..............54
SECTION 1107. Securities Redeemed in Part........................54
SECTION 1108. Provisions with Respect to Any Sinking Funds.......54
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance..........55
SECTION 1202. Defeasance and Discharge...........................56
SECTION 1203. Covenant Defeasance................................56
SECTION 1204. Conditions to Defeasance or Covenant Defeasance....57
SECTION 1205. Deposited Money and U.S. Government Obligations
to Be Held in Trust;
Other Miscellaneous Provisions...................58
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. Agreement To Subordinate....................................59
SECTION 1302. Liquidation, Dissolution, Bankruptcy........................60
SECTION 1303. Default on Senior Debt......................................60
SECTION 1304. Acceleration of Payment of Securities.......................61
SECTION 1305. When Distribution Must Be Paid Over.........................61
SECTION 1306. Subrogation.................................................61
SECTION 1307. Relative Rights.............................................61
SECTION 1308. Subordination May Not Be Impaired by Company................61
SECTION 1309. Rights of Trustee and Paying Agent..........................61
SECTION 1310. Distribution or Notice to Representative....................62
SECTION 1311. Article XIII Not To Prevent Events of Default or Limit
Right To Accelerate....................................62
SECTION 1312. Trust Moneys Not Subordinated...............................62
SECTION 1313. Trustee Entitled To Rely....................................62
SECTION 1314. Trustee To Effectuate Subordination.........................62
SECTION 1315. Trustee Not Fiduciary for Holders of Senior Debt............63
SECTION 1316. Reliance by Holders of Senior Debt on Subordination
Provisions.............................................63
TELIGENT, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and the Subordinated Indenture
Trust Indenture
Act Section Indenture Section
ss. 310(a)(1) .........................................609
(a)(2) ...........................................609
(a)(4) ...........................................609
(a)(5) ...........................................609
(b) ...........................................605, 608, 610,
613
ss. 311(a) .........................................614
(b) ...........................................614
ss. 312(c) .........................................701
ss. 313(a) .........................................702
(c) ...........................................602, 702, 703
ss. 314(a) .........................................703
(a)(4) ...........................................1004
(c)(1) ...........................................102
(c)(2) ...........................................102
(c)(3) ...........................................102
(e) ...........................................102
ss. 315(a) .........................................601
(b) ...........................................602
(c) ...........................................601
(d) ...........................................601
(e) ...........................................610
ss. 316(a)(last
sentence) ...........................................101
("Outstanding")
(a)(1)(A) ...........................................502, 512
(a)(1)(B) ...........................................513
(b) ...........................................508
(c) ...........................................104(d)
ss. 317(a)(1) .........................................503
(a)(2) ...........................................504
(b) ...........................................1003
ss. 318(a) .........................................111