THIS DOCUMENT IS A COPY OF THE EXHIBIT 4(e)(1) TO FORM 10-Q
FILED ON MAY 15, 1996 PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.
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VANGUARD CELLULAR SYSTEMS, INC.
AND
THE BANK OF NEW YORK, Trustee
INDENTURE
Dated as of April 1, 1996
Senior Debentures
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VANGUARD CELLULAR SYSTEMS, INC.
INDENTURE
TABLE OF CONTENTS
Page
Parties ..........................................................................................................1
Recitals..........................................................................................................1
Consideration ....................................................................................................1
ARTICLE I
DEFINITIONS; TRUST INDENTURE ACT CONTROLLING
SECTION 1.1. Definitions............................................................................1
Affiliate.............................................................1
Authenticating Agent..................................................1
Authorized Newspaper..................................................2
Bankruptcy Law........................................................2
Board; Board of Directors.............................................2
Business day..........................................................2
Capital Stock.........................................................2
Certified Resolution..................................................2
Class A Common Stock..................................................3
Class B Common Stock..................................................3
Closing Price.........................................................3
Code..................................................................3
Company...............................................................3
Company Order.........................................................3
Debenture.............................................................4
Debentureholder; holder of Debentures.................................4
Depositary............................................................4
Event of Default......................................................4
Global Debenture......................................................4
Indenture.............................................................4
Officers' Certificate.................................................4
Opinion of Counsel....................................................5
Original issue discount...............................................5
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Original Issue Discount Debenture.....................................5
Outstanding...........................................................5
Paying Agent..........................................................5
Person................................................................6
Principal.............................................................6
Principal amount......................................................6
Responsible Officer...................................................6
Securities Exchange Act...............................................6
Trustee; principal office.............................................6
U.S. Government Obligations...........................................7
SECTION 1.2. Trust Indenture Act definitions controlling............................................7
ARTICLE II
FORM, ISSUE AND REGISTRATION OF DEBENTURES
SECTION 2.1. Forms generally and dating.............................................................7
SECTION 2.2. Amount unlimited; Issuable in series...................................................8
SECTION 2.3. Denominations.........................................................................11
SECTION 2.4. Execution of Debentures; Authentication...............................................11
SECTION 2.5. Issue of Debentures...................................................................14
SECTION 2.6. Transfer of Debentures................................................................14
SECTION 2.7. Persons deemed owners of Debentures...................................................14
SECTION 2.8. Provisions for Debentures in temporary form...........................................14
SECTION 2.9. Mutilated, destroyed, lost or stolen Debentures.......................................15
SECTION 2.10. Exchanges of Debentures...............................................................16
SECTION 2.11. Cancellation of Surrendered Debentures................................................16
SECTION 2.12. Payment of interest; Defaulted interest...............................................17
SECTION 2.13. Global Debentures; Depository.........................................................17
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1. Rights under Indenture limited to the parties and holders of
Debentures............................................................................19
SECTION 3.2. Certificate of independent accountants conclusive.....................................19
SECTION 3.3. Treatment of Debentures owned or held by the Company in
determining required percentages......................................................19
SECTION 3.4. Remaining provisions not affected by invalidity of any other
provisions-required provisions of Trust Indenture Act of 1939 to
control...............................................................................20
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SECTION 3.5. Company released from Indenture requirements if entitled to have
Indenture canceled....................................................................20
SECTION 3.6. Date of execution.....................................................................20
SECTION 3.7. Execution of documents furnished under the Indenture..................................20
SECTION 3.8. Officers' Certificates and Opinions of Counsel to be furnished
Trustee...............................................................................20
SECTION 3.9. Presentation of notices and demands...................................................21
SECTION 3.10. Successors and assigns bound by Indenture.............................................22
SECTION 3.11 Descriptive headings for convenience only.............................................22
SECTION 3.12. North Carolina law to govern..........................................................22
SECTION 3.13. Indenture may be executed in counterparts.............................................22
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.1. Payment of Principal and interest.....................................................22
SECTION 4.2. Maintenance of office or agency.......................................................23
SECTION 4.3. Corporate existence...................................................................23
SECTION 4.4. Restrictions on mergers, sales and consolidations.....................................23
SECTION 4.5. Further assurances....................................................................23
SECTION 4.6. File certain reports and information with the Trustee and the
Securities and Exchange Commission - transmit to
Debentureholders summaries of certain documents filed with the
Trustee - furnish list of Debentureholders to the Trustee.............................23
SECTION 4.7. File statement by officers annually with the Trustee..................................24
SECTION 4.8. Duties of Paying Agent................................................................25
ARTICLE V
REDEMPTION OF DEBENTURES; SINKING FUND
SECTION 5.1. Applicability of Article..............................................................26
SECTION 5.2. Notice of redemption to be given to Trustee - deposit of cash (or
other form of payment) with Trustee - selection by Trustee of
Debentures to be redeemed.............................................................26
SECTION 5.3. Debentures called for redemption to become due - rights of holders
of redeemed Debentures - return of funds on conversion................................28
SECTION 5.4. Credits against sinking fund..........................................................28
SECTION 5.5. Redemption through sinking fund.......................................................29
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SECTION 5.6. Debentures no longer Outstanding after notice to Trustee and
deposit of cash.......................................................................30
SECTION 5.7. Conversion arrangement on call for redemption.........................................30
ARTICLE VI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 6.1. Satisfaction and discharge of Indenture with respect to Debentures
of any series.........................................................................31
SECTION 6.2. Deposits for payment or redemption of Debentures to be held in
trust.................................................................................32
SECTION 6.3. Repayment of moneys...................................................................32
ARTICLE VII
REMEDIES UPON DEFAULT
SECTION 7.1. Events of Default defined-acceleration of maturity upon default-
waiver of default after acceleration..................................................33
SECTION 7.2. Covenant of Company to pay to Trustee whole amount due on
default in payment of Principal or interest-Trustee may recover
judgment for whole amount due-application of moneys received by
the Trustee...........................................................................35
SECTION 7.3. Trustee may enforce rights of action without possession of
Debentures............................................................................38
SECTION 7.4. Delays or omissions not to impair any rights or powers accruing
upon default..........................................................................38
SECTION 7.5. In Event of Default Trustee may protect and enforce its rights by
appropriate proceedings-holders of majority in aggregate Principal
amount of Debentures of a series may waive default....................................38
SECTION 7.6. Holders of majority in aggregate Principal amount of Debentures of
any series may direct exercise of remedies............................................38
SECTION 7.7. Limitation on suits by Debentureholders...............................................39
SECTION 7.8. No Debentures owned or held by, for the account of or for the
benefit of the Company to be deemed Outstanding for purpose of
payment or distribution...............................................................40
SECTION 7.9. Company and Trustee restored to former position on discontinuance
or abandonment of proceedings.........................................................40
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ARTICLE VIII
EVIDENCE OF ACTION BY DEBENTUREHOLDERS
SECTION 8.1. Evidence of action by Debentureholders................................................40
ARTICLE IX
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 9.1. Immunity of incorporators, stockholders, officers, directors and
employees.............................................................................41
ARTICLE X
MERGER, CONSOLIDATION, SALE OR LEASE
SECTION 10.1. Documents required to be filed with the Trustee upon consolidation,
merger, sale, transfer or lease - execution or supplemental
indentures - acts of successor corporation............................................42
SECTION 10.2. Trustee may rely upon Opinion of Counsel..............................................43
ARTICLE XI
CONCERNING THE TRUSTEE
SECTION 11.1. Acceptance of Trust - responsibilities of Trustee.....................................43
SECTION 11.2. Trustee to be entitled to compensation - Trustee not to be
accountable for application of proceeds - moneys held by Trustee
to be trust funds.....................................................................46
SECTION 11.3. Trustee to give Debentureholders notice of default....................................47
SECTION 11.4. Trustee acquiring conflicting interest must eliminate it or resign....................47
SECTION 11.5. Eligibility of Trustee................................................................47
SECTION 11.6. Resignation or removal of Trustee.....................................................48
SECTION 11.7. Acceptance by successor Trustee.......................................................49
SECTION 11.8. Successor to Trustee by merger or consolidation, etc..................................50
SECTION 11.9. Limitations on right of Trustee as a creditor to obtain payment of
certain claims........................................................................51
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SECTION 11.10. Trustee to make annual report to Debentureholders - Trustee to
make other reports to Debentureholders - Debentureholders to
whom reports to be transmitted...............................................51
SECTION 11.11. Preservation of information by Trustee - Trustee to give certain
information to Debentureholders upon application.............................52
SECTION 11.12. Trustee may hold Debentures and otherwise deal
with Company.................................................................53
SECTION 11.13. Trustee may comply with any rule, regulation or order of the
Securities and Exchange Commission...........................................54
SECTION 11.14. Appointment of Authenticating Agent..........................................54
ARTICLE XII
SUPPLEMENTAL INDENTURES
SECTION 12.1. Company and Trustee may enter into supplemental indenture for
special purposes......................................................................56
SECTION 12.2. Modification of Indenture with consent of Debentureholders............................57
SECTION 12.3. Effect of supplemental indentures.....................................................58
SECTION 12.4. Supplemental indentures to conform to Trust Indenture Act.............................59
SECTION 12.5. Notation on or exchange of Debentures.................................................59
ARTICLE XIII
CONVERSION OF DEBENTURES
SECTION 13.1. Applicability of Article..............................................................59
SECTION 13.2. Right of Debentureholders to convert Debentures.......................................59
SECTION 13.3. Issuance of shares of Capital Stock on conversion.....................................60
SECTION 13.4. No payment or adjustment for interest or dividends....................................61
SECTION 13.5. Adjustment of conversion rate.........................................................61
SECTION 13.6. No fractional shares to be issued.....................................................65
SECTION 13.7. Preservation of conversion rights upon consolidation, merger, sale
or conveyance.........................................................................65
SECTION 13.8. Notice to Debentureholders of a series prior to taking certain types
of action.............................................................................66
SECTION 13.9. Covenant to reserve shares for issuance on conversion of
Debentures............................................................................67
SECTION 13.10. Compliance with governmental requirements.............................................67
SECTION 13.11. Payment of taxes upon certificates for shares issued upon
conversion............................................................................67
SECTION 13.12. Trustee's duties with respect to conversion provisions................................68
vi
INDENTURE dated as of the 1st day of April, 1996, between Vanguard
Cellular Systems, Inc., a corporation organized and existing under the laws of
the State of North Carolina (hereinafter called the "Company"), and The Bank of
New York, a New York banking corporation with its principal offices in New York,
New York, as Trustee hereunder (hereinafter called the "Trustee").
WHEREAS, the Company for its lawful corporate purposes has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its debentures, notes or other evidences of
indebtedness (hereinafter called the "Debentures"), to be issued in one or more
series, the amount and terms of each series to be determined as hereinafter
provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
THAT, in consideration of the premises and of the mutual covenants
herein contained and of the purchase and acceptance of the Debentures by the
holders thereof, and for other valuable consideration the receipt whereof is
hereby acknowledged, and intending to be legally bound hereby, it is hereby
agreed between the Company and the Trustee, for the benefit of those who shall
hold the Debentures, as follows:
ARTICLE I
DEFINITIONS; TRUST INDENTURE ACT CONTROLLING
SECTION 1.1. Definitions. Unless otherwise specified or the context
otherwise requires, the terms defined in this Article I shall for all purposes
of this Indenture and of any indenture supplemental hereto have the meanings
herein specified, the following definitions to be equally applicable to both the
singular and plural forms of any of the terms herein defined. All accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles in the United States of
America, and 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.
Affiliate
An "Affiliate" shall mean any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any other obligor under this Indenture.
Authenticating Agent
The term "Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 11.14 to act on behalf of the Trustee to
authenticate Debentures of one or more series.
Authorized Newspaper
The term "Authorized Newspaper" shall mean a newspaper in the English
language or in an official language of the country of publication, customarily
printed on each Business day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in the place in connection with which the
term is used or in the financial community of such place. If, because of
temporary suspension of publication or general circulation of any newspaper or
for any other reason, it is impossible or, in the opinion of the Trustee,
impracticable to make any publication of any notice required by this Indenture
in the manner herein provided, such publication or other notice in lieu thereof
which is made at the written direction of the Company by the Trustee shall
constitute a sufficient publication of such notice. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
place meeting the foregoing requirements and in each case on any Business day.
Bankruptcy Law
The term "Bankruptcy Law" means Title 11 of the United States Code, as
now constituted or hereafter in effect, or any other applicable Federal or State
bankruptcy, insolvency or other similar law.
Board; Board of Directors
The term "Board" or "Board of Directors" shall mean the Board of
Directors of the Company or the Executive Committee, if any, of such Board or
any other committee of such Board duly authorized to act hereunder.
Business day
The term "Business day" shall mean, with respect to any Debenture, a
day that, in the city (or in any of the cities, if more than one) in which
amounts are payable, as specified in the terms of such Debentures, is not a day
upon which banking institutions are authorized or required by law, or by
executive order issued by a governmental authority or agency regulating such
banking institutions, to close.
Capital Stock
The term "Capital Stock" shall mean stock of any class of the Company.
Certified Resolution
The term "Certified Resolution" shall mean 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.
2
Class A Common Stock
The term "Class A Common Stock" shall mean the Class A Common Stock,
$.01 par value, of the Company.
Class B Common Stock
The term "Class B Common Stock" shall mean the Class B Common Stock,
$.01 par value, of the Company.
Closing Price
The term "Closing Price" on any day when used with respect to any class
of Capital Stock shall mean (i) if the stock is then listed or admitted to
trading on a national securities exchange in the United States, the last
reported sale price, regular way, for the stock as reported in the consolidated
transaction or other reporting system for securities listed or traded on such
exchange, or (ii) if the stock is listed on the National Association of
Securities Dealers', Inc. Automated Quotations System National Market System
(the "NASDAQ National Market System"), the last reported sale price, regular
way, for the stock, as reported on such list, or (iii) if the stock is not so
admitted for trading on any national securities exchange or the NASDAQ National
Market System, the average of the last reported closing bid and asked prices
reported by the National Association of Securities Dealers', Inc. Automated
Quotations System as furnished by any member in good standing of the National
Association of Securities Dealers', Inc., selected from time to time by the
Company for that purpose or as quoted by the National Quotation Bureau
Incorporated. In the event that no such quotation is available for any day, the
Board of Directors shall be entitled to determine the current market price on
the basis of such quotations as it considers appropriate.
Code
The term "the Code" means the Internal Revenue Code of 1986, as
amended.
Company
The term "Company" shall mean Vanguard Cellular Systems, Inc., a North
Carolina corporation, and, subject to the provisions of Article X, shall include
its successors and assigns.
Company Order
The term "Company Order" means a written order signed in the name of
the Company by its Chairman of the Board, President, any Vice Chairman of the
Board or any Vice President, and by its Treasurer, any Assistant Treasurer,
Secretary or any Assistant Secretary and delivered to the Trustee.
3
Debenture
The term "Debenture" shall mean one of the debentures, notes or other
evidences of indebtedness that are issued from time to time in one or more
series under this Indenture and, more particularly, any Debenture authenticated
and delivered under this Indenture.
Debentureholder; holder of Debentures
The term "Debentureholder" or "holder of Debentures" or other similar
term shall mean any person who shall at the time be the registered holder of any
Debenture or Debentures as shown by the register or registers kept by the
Company or its agent for that purpose in accordance with the terms of this
Indenture.
Depositary
The term "Depositary" has the meaning specified in Section 2.13.
Event of Default
The term "Event of Default" shall mean an event listed in Section 7.1,
continued for the period of time, if any, and after the required notices, if
any, therein designated.
Global Debenture
The term "Global Debenture" has the meaning specified in Section 2.13.
Indenture
The term "Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or supplemented
and, unless the context otherwise indicates, shall include the form and terms of
each particular series of Debentures established as contemplated hereunder.
Officers' Certificate
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board, President, any Vice Chairman of the Board or any Vice
President and by the Treasurer or any Assistant Treasurer or the Secretary or
any Assistant Secretary of the Company, in their capacities as such officers of
the Company and delivered to the Trustee. Each such certificate shall include
the statements provided for in Section 3.8, if and to the extent required by the
provisions thereof.
4
Opinion of Counsel
The term "Opinion of Counsel" shall mean an opinion in writing signed
by Schell Bray Aycock Abel & Livingston L.L.P. or other legal counsel (who may
be an employee of the Company) acceptable in form and substance to the Trustee
and delivered to the Trustee. Such opinion shall include the statements provided
for in Section 3.8, if and to the extent required by the provisions thereof.
Original issue discount
The term "original issue discount" with respect to any debt security,
including an Original Issue Discount Debenture, has the same meaning as set
forth in Section 1273 of the Code, or any successor provision, and the
applicable Treasury Regulations thereunder.
Original Issue Discount Debenture
The term "Original Issue Discount Debenture" means any Debenture which
provides for an amount less than the principal amount thereof to be due and
payable upon acceleration of the maturity thereof pursuant to Section 7.1.
Outstanding
The term "Outstanding", when used with respect to the Debentures,
shall, subject to Section 3.3, mean, as of the date of determination, all
Debentures theretofore authenticated and delivered under this Indenture, except:
(a) Debentures for the payment or redemption of which cash (or other form of
payment if permitted by the terms of such Debentures) in the necessary amount
shall have been deposited in trust with the Trustee or any paying agent (other
than the Company) provided that, if such Debentures are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been duly given or
provision satisfactory to the Trustee shall have been made for giving such
notice; (b) Debentures converted into Capital Stock in accordance with Article
XIII hereof, if the terms of such Debentures provide for convertibility pursuant
to Section 2.2; (c) Debentures paid or in lieu of or in substitution for which
other Debentures shall have been authenticated and delivered pursuant to the
terms of Section 2.9, unless proof satisfactory to the Trustee is presented that
any such Debentures are held by persons in whose hands such Debentures are
valid, binding and legal obligations; and (d) Debentures which have been
canceled by the Trustee or delivered to the Trustee for cancellation.
Paying Agent
The term "Paying Agent" shall mean any person authorized by the Company
to pay the principal of, premium, if any, and interest on any Debentures.
5
Person
The term "Person" shall mean an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, any unincorporated
organization, or a government or political subdivision thereof.
Principal
The term "principal" of a debt security, including any Debenture, on
any day and for any purpose means the amount (including, without limitation, in
the case of an Original Issue Discount Debenture, any accrued original issue
discount, but excluding interest) that is payable with respect to such debt
security as of such date and for such purpose (including, without limitation, in
connection with any sinking fund, upon any redemption at the option of the
Company upon any purchase or exchange at the option of the Company or the holder
of such debt security and upon any acceleration of the maturity of such debt
security).
Principal amount
The term "principal amount" of a debt security, including any
Debenture, means the principal amount as set forth on the face of such debt
security.
Responsible Officer
The term "Responsible Officer", when used with respect to the Trustee,
shall mean any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
Securities Exchange Act
The term "Securities Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
Trustee; principal office
The term "Trustee" shall mean the trustee or trustees hereunder for the
time being, whether original or successor. "Trustee" as used with respect to the
Debentures of any series shall mean the Trustee with respect to Debentures of
such series. The term "principal office" of the Trustee shall mean the principal
office of the Trustee at which, at any particular time, the corporate trust
business of the Trustee shall be administered, which office as of the date
hereof is 101 Barclay Street, 21st Floor, New York, New York 10286.
6
U.S. Government Obligations
The term "U.S. Government Obligations" means direct obligations of, or
obligations entitled to the full faith and credit of, the United States of
America.
SECTION 1.2. Trust Indenture Act definitions controlling. All terms
used in this Indenture which are defined in the Trust Indenture Act of 1939, as
amended, or which are by reference therein defined in the Securities Act of 1933
(except as herein otherwise expressly provided or unless the context otherwise
requires) shall have the meanings assigned to such terms in such Trust Indenture
Act and such Securities Act as they were respectively in force at the date of
this Indenture, except as otherwise provided in Section 12.3.
ARTICLE II
FORM, ISSUE AND REGISTRATION OF DEBENTURES
SECTION 2.1. Forms generally and dating. The Debentures of each series
shall be in the form or forms (including temporary or permanent global form)
established from time to time by or pursuant to a resolution of the Board of
Directors or in one or more indentures supplemental hereto which shall set forth
the information required by Section 2.2. The Debentures and the Trustee's
certificate of authentication shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or by a resolution of the Board of Directors and may have such
notations, legends or endorsements as the Company may deem appropriate and as
are not inconsistent with the provisions of this Indenture or as may be required
by law, stock exchange rule or usage. The Company shall approve and provide the
form of the Debentures and any notation, legend or endorsement on them. If the
form of Debentures of any series is established by action taken pursuant to a
resolution of the Board of Directors, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 2.5 for the authentication and delivery of such
Debentures.
Each Debenture shall be dated the date of its authentication. The form
of the Trustee's certificate of authentication to be borne by the Debentures
shall be substantially as follows:
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Debentures of the series referred to on the reverse
hereof.
THE BANK OF NEW YORK
as Trustee
By:
Authorized Officer
7
SECTION 2.2. Amount unlimited; Issuable in series.
The aggregate principal amount of the Debentures which may be
authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series. There shall be
established in or pursuant to one or more resolutions of the Board of Directors,
or established in or pursuant to one or more indentures supplemental hereto,
prior to the issuance of the Debentures of any series:
(1) the title of the Debentures of the series (which shall
distinguish Debentures of the series from all other Debentures);
(2) any limit upon the aggregate principal amount of the
Debentures of the series which may be authenticated and delivered under
this Indenture (except for the Debentures authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Debentures of the series pursuant to Section 2.6, 2.8, 2.9, 2.10,
2.11, 5.2 or 12.5) and except for any Debentures which pursuant to
Section 2.4 are deemed not to have been authenticated and delivered
hereunder;
(3) the date or dates (and whether fixed or extendable) on
which the principal of the Debentures of the series is payable or the
method of determination thereof;
(4) the rate or rates at which the Debentures of the series
shall bear interest, if any, the method of calculating such rates, the
date or dates from which such interest shall accrue or the manner of
determining such dates, the interest payment dates on which such
interest shall be payable and the record dates for the determination of
Debentureholders to whom interest is payable;
(5) the place or places where the principal of and premium, if
any, and interest on the Debentures, if any, of the series shall be
payable;
(6) if other than 100% of their principal amount, the
percentage of the principal amount at which the Debentures will be
issued;
(7) any provisions relating to the issuance of the Debentures
of such series at an original issue discount;
(8) the price or prices at which, the period or periods within
which and the terms and conditions upon which the Debentures of the
series may be redeemed, in whole or in part, at the option of the
Company, pursuant to any sinking fund or otherwise (including, without
limitation, the form or method of payment thereof if other than in
cash);
8
(9) the obligation, if any, of the Company to redeem, purchase
or repay the Debentures of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Debentureholder thereof and the price or prices at which and the period
or periods within which and the terms and conditions upon which the
Debentures of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation (including, without
limitation, the form or method of payment thereof if other than in
cash), and any provisions for the remarketing of such Debentures;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which the Debentures of the
series shall be issuable;
(11) if other than the principal amount thereof, the portion
of the principal amount of the Debentures of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 7.1 or provable in bankruptcy pursuant to Section
7.2, or, if applicable, which is convertible in accordance with Article
XIII;
(12) any Events of Default with respect to the Debentures of a
particular series, in lieu of or in addition to those set forth herein
and the remedies therefor;
(13) the obligation, if any, of the Company to permit the
conversion or exchange of the Debentures of such series and, if any,
the securities or rights into which the Debentures of the series are
convertible or exchangeable (which may include other debentures,
Capital Stock or other securities or rights of the Company (including
rights to receive payment in cash or securities based on the value,
rate or price of one or more specified commodities, currencies or
indices) or exchangeable for securities of other series or a
combination of the foregoing), and the terms and conditions upon which
such conversion or exchange shall be effected (including, without
limitation, the initial conversion price or rate, the conversion period
and any other provision in addition to or in lieu of those set forth in
this Indenture relative to such obligation);
(14) any trustees, authenticating or paying agents, transfer
agents or registrars or any other agents with respect to the Debentures
of such series;
(15) the currency or currencies, including composite
currencies, in which the Debentures of the series shall be denominated
if other than the currency of the United States of America, and, if so,
whether the Debentures of the series may be satisfied and discharged
other than as provided in Article VI;
(16) if other than the coin or currency in which the
Debentures of that series are denominated, the coin or currency in
which payment of the principal of, premium, if any, or interest on the
Debentures of such series shall be payable;
9
(17) if the principal of, premium, if any, or interest on the
Debentures of such series are to be payable, at the election of the
Company or a Debentureholder thereof, in a coin or currency other than
that in which the Debentures are denominated, the period or periods
within which, and the terms and conditions upon which, such election
may be made;
(18) if the amount of payments of principal of, premium, if
any, and interest on the Debentures of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined;
(19) whether and under what circumstances the Company will pay
additional amounts on the Debentures of the series held by a person who
is not a United States of America person in respect of any tax,
assessment or governmental charge withheld or deducted and, if so,
whether the Company will have the option to redeem such Debentures
rather than pay such additional amounts;
(20) if receipt of certain certificates or other documents or
satisfaction of other conditions will be necessary for any purpose,
including, without limitation, as a condition to the issuance of the
Debentures of such series in definitive form (whether upon original
issue or upon exchange of a temporary Debenture of such series), the
form and terms of such certificates, documents or conditions;
(21) any other affirmative or negative covenants with respect
to the Debentures of such series;
(22) whether the Debentures of such series shall be issued in
whole or in part in the form of one or more Global Debentures and in
such case (i) the Depositary for such Global Debenture or Debentures,
which Depositary must be a clearing agency registered under the
Securities Exchange Act, (ii) the circumstances under which any such
Global Debenture may be exchanged for Debentures registered in the name
of, and under which any transfer of such Global Debenture may be
registered in the name of, any Person other than such Depositary or its
nominee, if other than as set forth in Section 2.13 and (iii) any other
provisions regarding such Global Debentures which provisions may be in
addition to or in lieu of, in whole or in part, the provisions of
Section 2.13; and
(23) any other terms of a particular series and any other
provisions expressing or referring to the terms and conditions upon
which the Debentures of such series are to be issued under the
Indenture, which terms and provisions are not in conflict with the
provisions of this Indenture; provided, however, that the addition to
or subtraction from or variation of Articles IV, V, VI, VII, and X (and
Section 1.1, insofar as it relates to the definition of certain terms
as used in such Articles) with regard to the Debentures of a particular
series shall not be deemed to constitute a conflict with the provisions
of those Articles.
10
All Debentures of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto. Not all Debentures of any one series need be issued at the
same time, and, unless otherwise so provided, a series may be reopened for
issuances of additional Debentures of such series.
If any of the terms of the Debentures of a series are established by
action taken pursuant to a resolution of the Board of Directors, a copy of any
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee with an
Officers' Certificate setting forth the terms of the Debentures of such series.
With respect to Debentures of a series which are not to be issued at one time,
such resolution of the Board of Directors or action may provide general terms or
parameters for Debentures of such series and provide either that the specific
terms of particular Debentures of such series shall be specified in a Company
Order or that such terms shall be determined by the Company or its agents in
accordance with a Company Order as contemplated by the proviso clause of Section
2.5.
SECTION 2.3. Denominations. The Debentures of each series shall be
registered Debentures without coupons, in such denominations as shall be
specified as contemplated by Section 2.2. In the absence of any such provisions
with respect to the Debentures of any series, the Debentures of such series
shall be issuable in denominations of $1,000 or of any integral multiple of
$1,000.
SECTION 2.4. Execution of Debentures; Authentication. The Debentures
shall be executed on behalf of the Company by its President or one of its Vice
Chairmen or Vice Presidents, whose signatures may be manual or facsimile, and
its corporate seal shall be thereunto affixed (or a facsimile thereof shall be
engraved, printed, or otherwise reproduced thereon) and attested by the manual
or facsimile signature of its Secretary or one of its Assistant Secretaries. In
case any officer of the Company who shall have signed any of the Debentures
shall cease to be such officer before the Debentures so signed and attested
shall actually have been authenticated and delivered by the Trustee or the
Authenticating Agent or disposed of by the Company, such Debentures nevertheless
may be authenticated, issued and delivered or disposed of with the same force
and effect as though the person or persons who signed or attested such
Debentures had not ceased to be such officer of the Company; and any such
Debenture may be signed and attested on behalf of the Company by such persons,
as at the actual date of the execution of such Debenture, shall be the proper
officers of the Company, although at the date of such Debenture or the date of
execution of this Indenture any such person was not such officer.
No Debenture of any series shall be entitled to the benefits hereof or
shall be or become valid or obligatory for any purpose unless there shall appear
on the Debenture a certificate of authentication, substantially in the form
hereinbefore recited, manually executed by the Trustee for such series or an
Authenticating Agent; and such certificate on any Debenture issued by the
Company shall be conclusive evidence that it has been duly authenticated and
delivered hereunder.
11
Notwithstanding the foregoing, if any Debenture shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debenture to the Trustee for cancellation as
provided in Section 2.11 together with a written statement (which need not be
accompanied by an Opinion of Counsel) stating that such Debenture has not been
issued and sold by the Company, for all purposes of this Indenture such
Debenture shall be deemed not to have been authenticated and delivered hereunder
and shall not be entitled to the benefits of this Indenture.
If the form or forms or terms of the Debentures of any series have been
established in or pursuant to one or more resolutions of the Board of Directors
or indentures supplemental hereto as permitted by Sections 2.1 and 2.2, in
authenticating such Debentures, and accepting the additional responsibilities
under this Indenture in relation to such Debentures, the Trustee and the
Authenticating Agent shall be entitled to receive, and (subject to Section 11.2)
shall be fully protected in relying upon, a copy of such resolution or
resolutions delivered to the Trustee and the Authenticating Agent and certified
by the Secretary or 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 an Opinion of Counsel stating:
(1) if the form or forms of such Debentures have been
established by or pursuant to a resolution of the Board of Directors or
indenture supplemental hereto, that such form or forms have been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Debentures have been established by
or pursuant to a resolution of the Board of Directors or indenture
supplemental hereto, that such terms have been established in
conformity with the provisions of this Indenture; and
(3) that such Debentures, when authenticated and delivered by
the Trustee or an Authenticating Agent and issued by the Company in the
manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization and other
laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general equity principles (or such other
similar matters as in the opinion of such counsel shall not materially
adversely affect such enforceability);
provided, however, that, with respect to Debentures of a series which are not to
be issued at one time, the Trustee and the Authenticating Agent shall be
entitled to receive such Opinion of Counsel only once at or prior to the time of
the first authentication of Debentures of such series and that the opinions
described in clauses (2) and (3) above may state, respectively:
(a) that, when the terms of such Debentures shall
have been established pursuant to a Company Order or pursuant
to such procedures as may be specified
12
from time to time by a Company Order, all as contemplated by
and in accordance with a resolution of the Board of Directors
or an Officers' Certificate pursuant to a resolution of the
Board of Directors or indenture supplemental hereto, as the
case may be, such terms will have been established in
conformity with the provisions of this Indenture; and
(b) that such Debentures, when (i) executed by the
Company, (ii) completed, authenticated and delivered by the
Trustee or the Authenticating Agent in accordance with this
Indenture, (iii) issued and delivered by the Company, and (iv)
paid for, all as contemplated by and in accordance with the
aforesaid Company Order or specified procedures, as the case
may be, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights
and to general equitable principles (or such other similar
matters as in the opinion of such counsel shall not materially
adversely affect such enforceability).
Notwithstanding the provisions of Sections 2.1, 2.2, 3.8 and this
Section, if all the Debentures of a series are not to be originally issued at
one time, the resolution of the Board of Directors or indenture supplemental
hereto, the certified copy of the record of action taken pursuant to such
resolution or supplemental indenture, the Officers' Certificate, the Company
Order and any other documents otherwise required pursuant to such Sections need
not be delivered at or prior to the time of authentication of each Debenture of
such series if such documents are delivered at or prior to the authentication
upon original issuance of the first Debenture of such series to be issued;
provided, however, that any subsequent request by the Company to the Trustee or
the Authenticating Agent to authenticate Debentures of such series 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 3.8 at or prior to authentication of the first such
Debenture shall be true and correct on the date thereof as if made on and as of
the date hereof.
The Trustee or the Authenticating Agent shall not be required to
authenticate such Debentures if the issue of such Debentures pursuant to this
Indenture will adversely affect the Trustee's or the Authenticating Agent's own
rights, duties or immunities under the Debentures and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee or the
Authenticating Agent.
With respect to Debentures of a series which are not all issued at one
time, the Trustee and the Authenticating Agent may conclusively rely, as to the
authorization by the Company of any such Debentures, the form and terms thereof
and the legality, validity, binding effect and enforceability thereof, upon the
Opinion of Counsel, Officers' Certificate and other documents delivered pursuant
to Sections 2.1, 2.2, 3.8 and this Section, as applicable, at or prior to the
time of the first authentication of Debentures of such series unless and until
such opinion, certificate
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or other documents have been superseded or revoked in a writing delivered to the
Trustee. In connection with the authentication and delivery of Debentures of a
series which are not all issued at one time, the Trustee and the Authenticating
Agent shall be entitled to assume that the Company's instructions to
authenticate and deliver such Debentures do not violate any rules, regulations
or orders of any governmental agency or commission having jurisdiction over the
Company.
SECTION 2.5. Issue of Debentures. The Trustee and the Authenticating
Agent, forthwith upon the execution and delivery of this Indenture and from time
to time thereafter, upon the execution and delivery to it of Debentures of any
series by the Company as herein provided, and without further action on the part
of the Company, shall authenticate such Debentures up to a maximum amount, if
any, designated for such series pursuant to Section 2.2 and deliver them to or
upon the receipt of a Company Order; provided, however, that if not all the
Debentures of a series are to be issued at one time and if the resolution of the
Board of Directors or indenture supplemental hereto establishing such series as
contemplated by Sections 2.1 and 2.2 shall so permit, such Company Order may set
forth procedures acceptable to the Trustee for the issuance of such Debentures
and for determining the form or forms or terms of particular Debentures of such
series including, but not limited to, interest rate, if any, maturity date, date
of issuance and date from which interest, if any, shall accrue.
SECTION 2.6. Transfer of Debentures. The transfer of any Debenture of
any series may be registered by the registered owner thereof, in person or by
his attorney duly authorized in writing, at the office or agency of the Company
to be maintained by it as provided in Section 4.2, by delivering such Debenture
for cancellation, accompanied by delivery of a duly executed instrument of
transfer, in a form approved by the Company and satisfactory to the Trustee, and
thereupon the Company shall execute in the name of the transferee or
transferees, and the Trustee or the Authenticating Agent shall authenticate and
deliver, a new Debenture or Debentures of the same series and of like form for
the same aggregate principal amount.
SECTION 2.7. Persons deemed owners of Debentures. Prior to due
presentation of any Debenture for registration of transfer, the person in whose
name a Debenture of any series shall be registered, on books kept for such
purpose in accordance with Section 4.2, shall be deemed the absolute owner
thereof for all purposes of this Indenture, whether or not such Debenture is
overdue, and neither the Company, the Trustee nor any Paying Agent or conversion
agent nor any Debenture registrar shall be affected by notice to the contrary.
Subject to the provisions of Section 2.12, payment of or on account of the
principal, premium, if any, and interest shall be made only to or upon the order
in writing of such registered owner thereof, but such registration may be
changed as above provided. All such payments shall be valid and effectual to
satisfy and discharge the liability upon such Debenture to the extent of the sum
or sums so paid.
SECTION 2.8. Provisions for Debentures in temporary form. Until
Debentures of any series in definitive form are ready for delivery, the Company
may execute and, upon its
14
request in writing, the Trustee or the Authenticating Agent shall authenticate
and deliver, in lieu thereof and subject to the same conditions, one or more
printed or lithographed Debentures in temporary form, substantially of the tenor
of Debentures of the same series, without a recital of specific redemption
prices and with such other appropriate omissions, variations and insertions, all
as may be determined by the Board of Directors. Until exchanged for Debentures
of the same series in definitive form such Debentures in temporary form shall be
entitled to the benefits of this Indenture. The Company shall, without
unreasonable delay after the issue of Debentures in temporary form, prepare,
execute and deliver definitive Debentures of the same series to the Trustee, and
upon the presentation and surrender of Debentures in temporary form, the Trustee
or the Authenticating Agent shall authenticate and deliver, in exchange
therefor, Debentures of the same series in definitive form for the same
aggregate principal amount as the Debentures in temporary form surrendered. Such
exchange shall be made by the Company at its own expense and without any charge
therefor.
SECTION 2.9. Mutilated, destroyed, lost or stolen Debentures. Upon
receipt by the Company, the Trustee and the Authenticating Agent of evidence
satisfactory to them that any Debenture of any series has been mutilated,
destroyed, lost or stolen, and upon receipt of indemnity (and in case of a
destroyed, lost or stolen Debenture, proof of ownership) satisfactory to them,
the Company shall, in the case of a mutilated Debenture, and may in the case of
a lost, stolen or destroyed Debenture, execute, and thereupon the Trustee or the
Authenticating Agent shall authenticate and deliver, a new Debenture of the same
series of like tenor bearing a serial number not contemporaneously outstanding
(bearing such notation, if any, as may be required by the rules of any stock
exchange upon which the Debentures of the same series are listed or are to be
listed), in exchange and substitution for, and upon surrender and cancellation
of, the mutilated Debenture, or in lieu of and in substitution for the Debenture
so destroyed, lost or stolen; or, if any mutilated, destroyed, lost or stolen
Debenture of any series shall have matured or be about to mature, instead of
issuing a new Debenture, the Company, upon written notice to the Trustee or the
Authenticating Agent, may pay the same without surrender of the destroyed, lost
or stolen Debenture. The Company may require payment of the expenses which may
be incurred by the Company or any agent thereof and the charges and expenses of
the Trustee and the Authenticating Agent in the premises. Any Debenture issued
under the provisions of this Section 2.9 in lieu of any Debenture alleged to
have been destroyed, lost or stolen, shall constitute an additional contractual
obligation of the Company, whether or not the Debenture alleged to have been
destroyed, lost or stolen shall be found at any time, and shall be equally and
proportionately entitled to the benefits of this Indenture with all other
Debentures of the same series issued under this Indenture.
All Debentures shall be held and owned upon the express condition that
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures, and shall preclude,
to the extent lawful, any and all other rights or remedies, notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
15
SECTION 2.10. Exchanges of Debentures. Debentures of any series may,
upon surrender thereof as hereinafter provided in this Section 2.10, be
exchanged for one or more Debentures of the same series of the same aggregate
principal amount, in authorized denominations. The Debentures to be exchanged
shall be surrendered at the office or agency of the Company to be maintained by
it as provided in Section 4.2, accompanied by duly executed instruments of
transfer in a form acceptable to the Company and the Trustee, and the Company
shall execute and the Trustee or the Authenticating Agent shall authenticate and
deliver, in exchange therefor, the Debenture or Debentures of the same series,
bearing numbers not contemporaneously outstanding, which the Debentureholder
making the exchange shall be entitled to receive. Every exchange of Debentures
of any series shall be effected in such manner as may be prescribed by the
Company with the approval of the Trustee, and as may be necessary to comply with
the regulations of any stock exchange upon which Debentures of such series are
listed or are to be listed or to conform to usage in respect thereof.
Upon every exchange or registration of transfer of Debentures, no
service charge shall be made but the Company may require the payment of any
taxes or other governmental charges required to be paid with respect to such
exchange or registration, as a condition precedent to the exercise of the
privilege of such exchange or registration.
All Debentures executed, authenticated and delivered in exchange or
upon registration of transfer shall be the valid obligations of the Company,
evidencing the same debt as the Debentures surrendered, and shall be entitled to
the benefits of this Indenture to the same extent as the Debentures in exchange
for which they were authenticated and delivered.
The Company shall not be required to make exchanges or registrations of
transfer under any provision of this Article II of: (a) the Debentures of any
series for the period of 15 days next preceding the date of any designation of
Debentures of such series to be redeemed, as provided in Article V, or (b) any
Debenture or portion thereof called or to be called for redemption.
SECTION 2.11. Cancellation of Surrendered Debentures. All Debentures of
any series surrendered for the purpose of payment, exchange, conversion or
cancellation (including Debentures authenticated which the Company has not
issued and sold) shall, if surrendered to the Company or any Paying Agent or
conversion agent, be delivered to the Trustee and canceled by it, or, if
surrendered to the Trustee, shall be canceled by it, and no Debentures shall be
issued in lieu thereof except as expressly permitted by any of the provisions of
this Indenture or as otherwise provided in the resolution of the Board of
Directors or indenture supplemental hereto establishing such series as
contemplated by Section 2.2. All Debentures of any series surrendered for the
purpose of redemption or credit against any sinking fund shall similarly be
delivered to the Trustee for cancellation, and no Debentures shall be issued in
lieu thereof except Debentures of the same series in the case of redemption of a
Debenture in part only. If the Company shall acquire any of the Debentures, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Debentures unless and until the same are
delivered to the Trustee for cancellation. Unless otherwise directed in writing
by the Company, the Trustee shall
16
destroy all canceled Debentures and furnish to the Company a certificate
evidencing such destruction.
SECTION 2.12. Payment of interest; Defaulted interest. Except as
provided in Section 13.4, interest (except defaulted interest) on the Debentures
of any series which is payable on any interest payment date shall be paid to the
persons who are Debentureholders of such series at the close of business on the
record date specified for that purpose as contemplated by Section 2.2. At the
option of the Company, payment of interest on any Debenture may be made by check
mailed to the holder's registered address.
If the Company defaults in a payment of interest on the Debentures of
any series, it shall pay the defaulted interest to the persons who are
Debentureholders of such series at the close of business on a subsequent special
record date. The Company shall fix the record date (which shall be not less than
five Business days prior to the date of payment of such defaulted interest) and
payment date. At least 15 days before the record date, the Company shall mail to
each Debentureholder of such series a notice that states the record date, the
payment date and the amount of defaulted interest to be paid. The Company shall
notify the Trustee in writing of the amount of defaulted interest proposed to be
paid on each Debenture of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee or any paying agent
for such series an amount of money in immediately available funds by 10:00 a.m.
New York time on the payment date equal to the aggregate amount proposed to be
paid in respect of such defaulted interest or shall make arrangements
satisfactory to any Paying Agent for such series for such deposit prior to the
date of the proposed payment. The Company may pay defaulted interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Debenture may be listed, and upon 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 payment shall be deemed
practicable by the Trustee.
SECTION 2.13. Global Debentures; Depositary. For the purposes of this
Section, the term "Agent Member" means a member of, or participant in, a
Depositary; the term "Depositary" means, with respect to Debentures issuable or
issued in whole or in part in the form of one or more Global Debentures, the
entity designated as Depositary by the Company pursuant to Section 2.2, and, if
at any time there is more than one such person, "Depositary" as used with
respect to the Debentures shall mean the respective Depositary with respect to
particular series of Debentures; and the term "Global Debenture" means a global
certificate evidencing all or part of the series of Debentures as shall be
specified herein, issued to the Depositary for the series or such portion of the
series, and registered in the name of such Depositary or its nominee. The Global
Debenture may provide that it shall represent the aggregate amount of
Outstanding Debentures from time to time endorsed thereon which may from time to
time be reduced to reflect exchanges. Any endorsement to reflect the amount, or
any increase or decrease in the amount, of Outstanding Debentures shall be made
by the Trustee.
17
Notwithstanding Section 2.10, except as otherwise specified as
contemplated by Section 2.2., hereof, any Global Debenture shall be exchangeable
only as provided in this paragraph. A Global Debenture shall be exchangeable
pursuant to this Section 2.13 if (i) the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary for such Global Debenture or if
at any time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act, (ii) the Company in its sole discretion determines that
all Global Debentures of any series then outstanding under the Indenture shall
be exchangeable for definitive Debentures of such series in registered form or
(iii) an Event of Default with respect to the Debentures of the series
represented by such Global Debenture has occurred and is continuing. Any Global
Debenture of such series exchangeable pursuant to the preceding sentence shall
be exchangeable for definitive Debentures of such series in registered form,
bearing interest (if any) at the same rate or pursuant to the same formula,
having the same date of issuance, redemption, conversion (if any) and other
provisions, and of differing denominations aggregating a like amount. Such
definitive Debentures of such series shall be registered in the names of the
owners of the beneficial interests in such Global Debentures of such series as
such names are from time to time provided by the relevant participants in the
Depositary holding such Global Debentures (as such participants are identified
from time to time by such Depositary).
No Global Debenture may be transferred except as a whole by a nominee
of the Depositary to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee or a successor of the Depositary or a nominee
of such successor. Except as provided above, owners solely of beneficial
interests in a Global Debenture shall not be entitled to receive physical
delivery of Debentures of such series in definitive form and will not be
considered the Debentureholders thereof for any purpose under this Indenture.
Any Global Debenture that is exchangeable pursuant to the preceding
paragraph shall be exchangeable for Debentures of such series in authorized
denominations and registered in such names as the Depositary that is the
Debentureholder of such Global Debentures of such series shall direct.
In the event that a Global Debenture is surrendered for redemption in
part pursuant to Section 5.2 or 5.5, the Company shall execute, and the Trustee
or the Authenticating Agent shall authenticate and delivery to the Depositary
for such Global Debenture, without service charge, a new Global Debenture in a
denomination and tenor equal to and in exchange for the unredeemed portion of
the principal for the Global Debenture so surrendered.
The Agent Members shall have no rights under this Indenture with
respect to any Global Debenture held on their behalf by a Depositary, and such
Depositary may be treated by the Company, the Trustee, and any agent of the
Company or the Trustee as the owner of such Global Debenture for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee, or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by a
Depositary or impair, as between a Depositary and its Agent Members, the
operation of customary practices
18
governing the exercise of the rights of a holder of a Debenture of any series,
including without limitation, the granting of proxies or other authorization of
participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Debentureholder is entitled to
give or take under the Indenture.
The Trustee shall not be required to authenticate Global Debentures
until it has received documentation satisfactory to it.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1. Rights under Indenture limited to the parties and holders
of Debentures. Nothing in this Indenture or the Debentures, express or implied,
is intended or shall be construed to confer upon, or to give to, any person or
corporation, other than the parties hereto, their successors and assigns, and
the holders of the Debentures, any right, remedy or claim under or by reason of
this Indenture or any provision hereof; and the provisions of this Indenture are
for the exclusive benefit of the parties hereto, their successors and assigns,
and the holders of the Debentures.
SECTION 3.2. Certificate of independent accountants conclusive. Unless
otherwise specifically provided, the certificate or opinion of Arthur Andersen &
Co., or of any other independent firm of public accountants of recognized
standing selected by the Board of Directors and acceptable to the Trustee in the
exercise of reasonable care (which firm may be regular independent accountants
to the Company), shall be conclusive evidence of the correctness of any
computation made under the provisions of this Indenture, and wherever reference
is made in this Indenture to "generally accepted accounting principles" the
certificate or opinion of such a firm shall be conclusive evidence thereof. The
Company shall furnish to the Trustee upon its request a copy of any such
certificate or opinion.
SECTION 3.3. Treatment of Debentures owned or held by the Company in
determining required percentages. For all purposes of this Indenture, in
determining whether the holders of a required percentage or proportion of the
principal amount of Debentures of one or more series have concurred in any
request, waiver, vote, direction or consent, Debentures owned or held by or for
the account or for the benefit of the Company or any other obligor under this
Indenture or any Affiliate shall be disregarded and deemed not Outstanding,
except that, for the purposes of determining whether the Trustee shall be
protected in relying on any such request, waiver, direction or consent, only
Debentures which the Trustee knows to be so owned or held shall be so
disregarded. Debentures so owned which have been pledged in good faith to secure
an obligation may be regarded as Outstanding for all such purposes, if the
Trustee receives an Officers' Certificate stating that said Debentures have been
so pledged, that the pledgee is entitled to vote with respect to such Debentures
and that the pledgee is not the Company or any other obligor on the Debentures,
an Affiliate of the Company or an Affiliate of such other obligor. In
19
case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be conclusive, and, subject to the provisions of Section
11.1 of this Indenture, shall afford full protection to the Trustee.
SECTION 3.4. Remaining provisions not affected by invalidity of any
other provisions-required provisions of Trust Indenture Act of 1939 to control.
In case anyone or more of the provisions contained in this Indenture or in the
Debentures of any series shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Indenture, but this Indenture shall
be construed as if such invalid, illegal or unenforceable provisions had never
been contained herein.
If any provision of this Indenture limits, qualifies or conflicts with
any other provision of this Indenture which is required to be included in an
indenture qualified under the Trust Indenture Act of 1939, as amended, such
provision which is so required to be included shall control.
SECTION 3.5. Company released from Indenture requirements if entitled
to have Indenture canceled. Whenever by the terms of this Indenture the Company
shall be required to do or not to do anything so long as any of the Debentures
shall be Outstanding of any series, the Company shall, notwithstanding any such
provision, not be required to comply with such provision with respect to such
series if it shall be entitled to have this Indenture satisfied and discharged
pursuant to the provisions hereof, even though in either case the holders of any
of the Debentures of such series shall have failed to present and surrender such
Debentures for payment pursuant to the terms of this Indenture.
SECTION 3.6. Date of execution. Although this Indenture, for
convenience and for the purpose of reference, is dated as of the date first
above written, the actual date of execution by the Company and by the Trustee is
as indicated by their respective acknowledgments hereto annexed.
SECTION 3.7. Execution of documents furnished under the Indenture.
Unless otherwise expressly provided, any order, notice, request, demand,
certificate or statement of the Company required or permitted to be made or
given under any provision hereof shall be sufficiently executed if signed by its
Chairman of the Board, President, any Vice Chairman of the Board or any Vice
President, and by its Treasurer, any Assistant Treasurer, Secretary or any
Assistant Secretary.
SECTION 3.8. Officers' Certificates and Opinions of Counsel to be
furnished Trustee. Upon any application, demand or request by the Company to the
Trustee to take any action under any of the provisions 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 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 have been complied
with and that such action is in compliance with applicable law.
20
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include (a) a statement that
the person making such certificate or opinion has read such covenant or
condition; (b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based; (c) a statement that, in the opinion of such
person, he 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 (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement 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, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Company, upon the certificate, statement or opinion of or representations by
an officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous. Any certificate or
opinion of any independent firm of public accountants filed with the Trustee
shall contain a statement that such firm is independent.
SECTION 3.9. Presentation of notices and demands. All notices to or
demands upon the Trustee shall be in writing and may be served or presented at
the principal office of the Trustee. Any notice to or demand upon the Company
shall be deemed to have been sufficiently given or served by the Trustee or the
Debentureholders, for all purposes, by being mailed by first class mail
addressed to the Company, attention of the President, at 2002 Pisgah Church
Road, Suite 300, Greensboro, North Carolina 27455, and to Schell Bray Aycock
Abel & Livingston L.L.P., 230 North Elm Street, Suite 1500, Greensboro, North
Carolina 27401, Attention: Kenneth N. Shelton, Esq., or at such other address or
to such other counsel, as may be filed in writing by the Company with the
Trustee.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to holders of Debentures of any event, such notice shall be
sufficiently given to holders of Debentures if in writing and mailed,
first-class postage prepaid, to each holder of a Debenture
21
affected by such event, at the address of such holder as it appears in the
Debenture register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
holders of Debentures by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to holders of Debentures is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular holder of a Debenture shall affect the sufficiency of
such notice with respect to other holders of Debentures.
SECTION 3.10. Successors and assigns bound by Indenture. All the
covenants, promises and agreements in this Indenture contained by or on behalf
of the Company, or by or on behalf of the Trustee, shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed or not.
SECTION 3.11 Descriptive headings for convenience only. The descriptive
headings of the several Articles of this Indenture are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 3.12. North Carolina law to govern. This Indenture and each
Debenture shall be deemed to be a contract made under the laws of the State of
North Carolina, and for all purposes shall be construed in accordance with the
laws of said jurisdiction, except that the rights, obligations, duties,
immunities and limitations of rights of the Trustee shall be construed in
accordance with the laws of the State of New York.
SECTION 3.13. Indenture may be executed in counterparts. This Indenture
may be simultaneously executed in any number of counterparts, each of which when
so executed and delivered shall be an original, but such counterparts shall
together constitute but one and the same instrument. The Bank of New York, as
Trustee, hereby accepts the trusts in this Indenture declared and provided upon
the terms and conditions hereinbefore set forth.
ARTICLE IV
COVENANTS OF THE COMPANY
The Company covenants and agrees as follows:
SECTION 4.1. Payment of Principal and interest. The Company will for
the benefit of each series of Debentures duly and punctually pay or cause to be
paid the principal of, premium, if any, and interest on the Debentures of such
series at the times and place and in the manner specified in this Indenture and
in the Debentures of such series. At the option of the
22
Company, interest on the Debentures shall be payable without presentation of
such Debentures by a check to the registered holder.
SECTION 4.2. Maintenance of office or agency. So long as any of the
Debentures of any series remain unpaid, the Company will at all times keep an
office or agency in New York, New York, where Debentures of such series may be
presented for registration of transfer and exchange as in this Indenture
provided, where notices and demands with respect to the Debentures and this
Indenture may be served and where the Debentures may be presented for payment
or, for Debentures of each series that is convertible, for conversion. The
principal office of the Trustee shall be the office or agency for all of the
aforesaid purposes, unless the Company shall maintain some other office or
agency with respect to the Debentures of any series for such purposes and shall
give the Trustee written notice of the location thereof. In case the Company
shall fail to maintain such office or agency, presentations may be made and
notices and demands may be served at the principal office of the Trustee.
The Company shall keep, at said office or agency, a register or
registers in which, subject to such reasonable regulations as it may prescribe,
the Company shall register or cause to be registered Debentures of each series
and shall register or cause to be registered the transfer or exchange of
Debentures of each series as in Article II provided. Such register or registers
shall be in written form in the English language or any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, such register or registers shall be open for inspection by the Trustee.
SECTION 4.3. Corporate existence. So long as any of the Debentures
remain unpaid, the Company will at all times (except as otherwise provided or
permitted elsewhere in this Indenture) do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.
SECTION 4.4. Restrictions on mergers, sales and consolidations. So long
as any of the Debentures remain unpaid, the Company will not consolidate or
merge with or sell, convey or lease all or substantially all of its property to
any other corporation except as permitted in Article X hereof.
SECTION 4.5. Further assurances. From time to time whenever requested
by the Trustee, the Company will execute and deliver such further instruments
and assurances and do such further acts as may be reasonably necessary or proper
to carry out more effectually the purposes of this Indenture or to secure the
rights and remedies hereunder of the holders of the Debentures of any series.
SECTION 4.6. File certain reports and information with the Trustee and
the Securities and Exchange Commission - transmit to Debentureholders summaries
of certain documents filed with the Trustee - furnish list of Debentureholders
to the Trustee. The Company will:
23
(a) file with the Trustee, within 15 days after the Company
files the same with the Securities and Exchange Commission, copies of
the annual reports and of the information, documents and other reports
which the Company may be required to file with the Securities and
Exchange Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (or copies of such portions thereof as
may be prescribed by the Securities and Exchange Commission); or, if
the Company is not required to file with the Securities and Exchange
Commission information, documents or reports pursuant to either Section
13 or Section 15(d) of the Securities Exchange Act of 1934, then the
Company will file with the Trustee and will file with the Securities
and Exchange Commission, in accordance with rules and regulations
prescribed by the Securities and Exchange Commission, such of the
supplementary and periodic information, documents and reports required
pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed in such rules and regulations;
(b) file with the Trustee and the Securities and Exchange
Commission, in accordance with the rules and regulations prescribed
from time to time by the Securities and Exchange Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required by such rules and regulations;
(c) transmit to the Debentureholders, in the manner and to the
extent provided in subdivision (c) of Section 11.10, such summaries of
any information, documents and reports required to be filed with the
Trustee pursuant to the provisions of subdivisions (a) and (b) of this
Section 4.6 as may be required by the rules and regulations of the
Securities and Exchange Commission; and
(d) furnish or cause to be furnished to the Trustee, not more
than 15 days after each record date (but in no event less frequently
than every six months) for the payment of interest with respect to
Debentures of any series, and at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of any
such request, a list in such form as the Trustee may reasonably require
containing all information in the possession or control of the Company
or of any paying agent, other than the Trustee, as to the names and
addresses of the holders of Debentures of such series obtained since
the date as of which the next previous list, if any, was furnished;
provided, that so long as the Trustee is Debenture registrar for such
series, no such list need be furnished. Any such list may be dated as
of a date not more than 15 days prior to the time such information is
furnished or caused to be furnished, and need not include information
received after such date (excluding from any such list names and
addresses received by the Trustee in its capacity as Debenture
registrar).
SECTION 4.7. File statement by officers annually with the Trustee.
Within 120 days after the close of the fiscal year ending December 31, 1996 and
within 120 days after the
24
close of each fiscal year thereafter, the Company will file with the Trustee a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture. For
purposes of this paragraph, such compliance shall be determined without regard
to any period of grace or requirement of notice provided under this Indenture.
At the time such Officers' Certificate is filed, the Company will also
file with the Trustee a letter or statement of the independent accountants who
shall have certified the financial statements of the Company for its preceding
fiscal year in connection with the annual report of the Company to its
shareholders for such year to the effect that, in making the examination
necessary for certification of such financial statements, they have obtained no
knowledge of any default by the Company in the performance or fulfillment of any
covenant, agreement or condition contained in this Indenture, which default
remains uncured at the date of such letter or statement, or, if they shall have
obtained knowledge of any such uncured default, specifying in such letter or
statement such default or defaults and the nature and status thereof, it being
understood that such accountants shall not be liable directly or indirectly for
failure to obtain knowledge of any such default or defaults, and that nothing
contained in this Section 4.7 shall be construed to require such accountants to
make any investigation beyond the scope required in connection with such
examination.
SECTION 4.8. Duties of Paying Agent. The Company will cause each Paying
Agent for the Debentures of any series other than the Trustee to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee:
(a) that it will hold all sums held by it as such agent for
the payment of the principal of, premium, if any, or interest on the
Debentures of such series (whether such sums have been paid to it by
the Company or by any other obligor on the Debentures of such series)
in trust for the benefit of the holders of the Debentures of such
series;
(b) that it will give the Trustee written notice of any
failure by the Company (or by any other obligor on the Debentures of
such series) to make any payment of the principal of, premium, if any,
or interest on the Debentures of such series when the same shall be due
and payable; and
(c) that it will, at any time during the continuance of any
Event of Default with respect to such series, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent.
If the Company acts as its own paying Agent for the Debentures of any
series, it will, on or before each due date of the principal of, premium, if
any, or interest on the Debentures of such series, set aside and segregate and
hold in trust for the benefit of the holders of the Debentures of such series a
sum sufficient to pay such principal, premium, if any, or interest and will
notify the Trustee of such action or any failure to take such action.
25
Whenever the Company shall have one or more Paying Agents for any
series of Debentures, it will, on or before each due date of the principal of,
premium, if any, or interest on any Debentures of such series, deposit with the
Paying Agent or Agents for the Debentures of such series a sum, by 10:00 a.m.
New York time in immediately available funds on the payment date, sufficient to
pay the principal, premium, if any, or interest so becoming due with respect to
the Debentures of such series, and (unless such paying agent is the Trustee) the
Company will promptly notify the Trustee in writing of any failure so to act.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to the Debentures of
one or more series or for any other purpose, pay, or by Company order direct any
Paying Agent for such series to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
payment.
Anything in this Section 4.8 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.8 shall be subject
to the provisions of Section 6.3.
ARTICLE V
REDEMPTION OF DEBENTURES; SINKING FUND
SECTION 5.1. Applicability of Article. Debentures of any series which
are redeemable before their stated maturity at the election of the Company or
through the operation of any sinking fund for the retirement of Debentures of
such series shall be redeemable in accordance with their terms established
pursuant to Section 2.2 and (except as otherwise established pursuant to Section
2.2 for Debentures of such series) in accordance with this Article.
SECTION 5.2. Notice of redemption to be given to Trustee - deposit of
cash (or other form of payment) with Trustee - selection by Trustee of
Debentures to be redeemed. Not less than 30 days (or such lesser number of days
as the Trustee shall approve) nor more than 60 days (or such greater number of
days as the Trustee shall approve) prior to the date fixed by the Company for
the redemption at the option of the Company of any Debentures of any series
which are subject to redemption or portions thereof, the Company shall give
written notice, by delivering a Company Order to the Trustee, stating the
aggregate principal amount of Debentures of such series which the Company elects
to redeem and the date and place fixed for redemption, that the Company, in the
case of any redemption of Debentures subject to any restrictions on such
redemption provided in the terms of Debentures of such series established
pursuant to Section 2.2 or elsewhere in this Indenture, is in compliance with
such restrictions. On or before 10:00 a.m. New York time of the date fixed for
redemption, the Company shall deposit with the Trustee or the Paying Agent money
in immediately available funds on such redemption date (or other form of payment
if permitted by the terms of such Debentures) an amount sufficient to redeem on
the
26
date fixed for redemption all the Debentures of such series or portions thereof
to be redeemed, other than any Debentures of such series called for redemption
on such date which have been converted prior to the date of such deposit, at the
appropriate redemption price, together with any accrued interest to the date
fixed for redemption. If less than all the Debentures then Outstanding of such
series are to be redeemed, the Trustee shall select, substantially pro rata or
by lot, in such manner as it shall deem appropriate and fair, in its sole
discretion, the numbers of the Debentures to be redeemed as a whole or in part,
and shall thereafter promptly notify the Company in writing of the numbers of
the Debentures to be redeemed; provided, however, that Debentures of such series
registered in the name of the Company shall be excluded from any such selection
for redemption until all Debentures of such series not so registered shall have
been previously selected for redemption. For the purpose of such selection in
case of redemption of less than all of the Debentures of any series, the Trustee
and the Company shall have the option to treat as Outstanding Debentures any
Debentures of such series which are surrendered for conversion after the
fifteenth day immediately preceding the mailing of the notice of such
redemption, and need not treat as Outstanding Debentures any Debentures
authenticated and delivered during such period in exchange for the unconverted
portion of any Debentures converted in part during such period. In case any
Debenture shall be redeemed in part only, the notice of redemption shall specify
the principal amount thereof to be redeemed and shall state that, upon surrender
thereof for redemption, a new Debenture or new Debentures of the same series of
an aggregate principal amount equal to the unredeemed portion of such Debenture
will be issued in lieu thereof; and in such case the Company shall execute and
the Trustee or the Authenticating Agent shall authenticate and deliver such new
Debenture or Debentures of such series to or upon the written order of the
Debentureholder at the expense of the Company. Provisions of this Indenture that
apply to Debentures called for redemption also apply to portions of Debentures
called for redemption.
Upon or after the receipt of such notice, the Trustee, in the name of
the Company and as its agent, shall mail by first-class mail, postage prepaid,
to each registered holder of a Debenture to be redeemed in whole or in part at
his last address appearing on the registration books of the Company, a notice of
redemption. Such notice of redemption shall identify the Debentures to be so
redeemed in whole or in part and whether such Debentures are to be redeemed in
whole or in part and shall state: (i) the date fixed for redemption; (ii) the
redemption price at which Debentures are to be redeemed and method of payment,
if other than in cash; (iii) if applicable, the current conversion price or
rate; (iv) if applicable, that the right of the Debentureholder to convert
Debentures called for redemption shall terminate at the close of business on the
date fixed for redemption (or such other day as may be specified as contemplated
by Section 2.2 for Debentures of any series); (v) if applicable, that
Debentureholders who want to convert Debentures called for redemption must
satisfy the requirements for conversion contained in such Debentures; (vi) that,
subject to Section 13.4, interest, if any, accrued to the date fixed for
redemption will be paid as specified in said notice and that on and after said
date interest thereon shall cease to accrue; (vii) the provision of the
Debenture or this Indenture under which the redemption is being made; and (viii)
that the Company so elects to redeem such Debentures or portions thereof at the
place or places specified in such notice. Such notice shall be mailed not
27
later than the tenth, and not earlier than the sixtieth, day before the date
fixed for redemption. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
holder receives such notice; and failure duly to give such notice by mail, or
any defect in such notice, to the holder of any Debenture designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debenture.
The Company shall pay to the Trustee the cost of mailing notices of
redemption and any other necessary expenses incurred by the Trustee in
connection therewith.
SECTION 5.3. Debentures called for redemption to become due - rights of
holders of redeemed Debentures - return of funds on conversion. The notice of
election to redeem having been mailed as hereinbefore provided, the Debentures
or portions thereof called for redemption shall become due and payable on the
redemption date at the applicable redemption price, together with interest
accrued to the date fixed for redemption, at the place or places specified in
such notice, and if cash (or other form of payment if permitted by the terms of
such Debentures) in the amount necessary to redeem such Debentures or portions
thereof has been deposited with the Trustee, interest on such Debentures or
portions thereof shall cease to accrue from and after the date fixed for
redemption (unless the Company shall default in the payment of the redemption
price, plus accrued interest, if any) and the right to convert such Debentures
or portions thereof, if the terms of such Debentures provide for conversion
pursuant to Section 2.2, shall terminate at the close of business on the date
fixed for redemption or such other day as may be specified as contemplated by
Section 2.2 for Debentures of such series. The respective registered holders of
Debentures or portions thereof so called for redemption shall be entitled to
receive payment of the applicable redemption price, together with interest
accrued to the date fixed for redemption on or after the date fixed for
redemption (unless the Company shall default in the payment of the redemption
price, plus accrued interest, if any), upon presentation and surrender at the
place or places of payment specified in such notice. Notwithstanding the
foregoing, subject to Section 13.4, if the record date for payment or interest
is on or prior to the redemption date, such interest shall be payable to the
persons who are holders of such Debentures on such record date according to the
terms of such Debentures and Section 2.12.
If any Debenture called for redemption pursuant to Section 5.1 is
converted pursuant to Article XIII, any monies deposited with the Trustee for
the purpose of paying or redeeming any such Debenture shall be promptly paid to
the Company.
SECTION 5.4. Credits against sinking fund. Against any one or more
sinking fund payments to be made pursuant to the terms of the Debentures of any
series providing for a sinking fund, the Company may elect, by delivery of an
Officers' Certificate to the Trustee, at least 45 days prior to the sinking fund
payment date (or such shorter period as may be acceptable to the Trustee or is
otherwise specified as contemplated by Section 2.2 for Debentures of any
series), to take credit for any Debentures of such series or portions thereof
acquired or redeemed by the Company, pursuant to the terms of such Debentures or
through the application of permitted
28
optional sinking fund payments pursuant to the terms of such Debentures, which
have not previously been used by the Company for the purposes permitted in this
Section 5.4 and for any Debentures which have been converted pursuant to the
terms of such Debentures. Such Debentures shall be received and credited for
such purpose by the Trustee at the redemption price specified in such Debentures
for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly. Upon any such election the
Company shall receive credit against such sinking fund payments required to be
made in the order in which they are to be made. Any Debenture for which credit
is elected to be taken which shall not theretofore have been delivered to the
Trustee for cancellation shall at the time of such election be delivered to the
Trustee for cancellation by the Trustee.
SECTION 5.5. Redemption through sinking fund. Each sinking fund payment
made under the terms of the Debentures of any series established pursuant to
Section 2.2 shall be applied to the redemption of Debentures of such series on
the date for redemption specified in the Debentures of such series next
succeeding such sinking fund payment date; provided, however, if at any time the
amount of cash to be paid into the sinking fund for such series on the next
succeeding sinking fund payment date, together with any unused balance of any
preceding sinking fund payment or payments for such series, shall not exceed in
the aggregate $10,000, the Trustee, unless requested by the Company, shall not
give notice of the redemption of Debentures of such series through the operation
of the sinking fund on the succeeding date for redemption specified in the
Debentures of such series. At least 45 days (or such lesser number of days as
the Trustee shall approve) prior to the date on which a sinking fund payment
with respect to the Debentures of any series is due, the Company shall give
written notice to the Trustee of the principal amount of Debentures of such
series registered in the name of the Company (which shall be excluded from such
redemption) and the Trustee shall select, substantially pro rata or by lot, in
such manner as it shall deem appropriate and fair, the principal amount of
Debentures of such series to be redeemed in accordance with the terms of the
Debentures of such series after allowance for any credit elected under Section
5.4 and shall, in the name and at the expense of the Company and as its agent,
give notice of such redemption, all in the manner provided for in Section 5.2,
except that such notice shall state that the Debentures of such series are being
redeemed for the sinking fund. The notice of redemption having been mailed as
hereinbefore provided, the Debentures or portions thereof called for redemption
shall become due and payable on the next succeeding date for redemption
specified in the Debentures of such series at the sinking fund redemption price
thereof, all in the manner and with the effect provided for in Section 5.3.
Any sinking fund payment not so required to be applied to the
redemption of Debentures of any series on the date for redemption specified in
the Debentures of such series next succeeding any sinking fund payment date may,
at the direction of the Company as evidenced by a Company Order, be applied by
the Trustee prior to the forty-fifth day preceding the next following sinking
fund payment date for such series, in such manner and from time to time, in such
amount as the Company may direct the Trustee in writing, so far as such moneys
shall be adequate, to the purchase for the sinking fund of Debentures of such
series or portions thereof, in the open market, from the Company or otherwise,
at prices (exclusive of accrued interest and brokerage
29
commissions) not in excess of the sinking fund redemption price for such series.
The Company agrees to pay to the Trustee, upon request, accrued interest and
brokerage commissions paid by the Trustee with respect to any Debentures of such
series so purchased by the Trustee and such accrued interest and brokerage
commissions shall not be charged against the sinking fund for such series.
Any unused balance of sinking fund moneys with respect to Debentures of
any series remaining in the hands of the Trustee on the forty-fifth day
preceding the sinking fund payment date for such series in any year shall be
added to any sinking fund payment for such series to be made in cash in such
year, and together with such payment, if any, shall be applied to the redemption
or purchase of Debentures of such series in accordance with the provisions of
this Section 5.5, provided that any sinking fund moneys so remaining in the
hands of the Trustee after the date specified in the Debentures of such series
and not utilized in the purchase of Debentures of such series as provided in
this Section 5.5 shall be applied by the Trustee to the payment of Debentures at
maturity.
SECTION 5.6. Debentures no longer Outstanding after notice to Trustee
and deposit of cash. If the Company, having given notice to the Trustee as
provided in Section 5.1 or 5.2, shall have deposited with the Trustee or the
Paying Agent, for the benefit of the holders of any Debentures of any series or
portions thereof called for redemption in whole or in part cash or other form of
payment if permitted by the terms of such Debentures (which amount shall be
immediately due and payable to the holders of such Debentures or portions
thereof) in the amount necessary so to redeem all such Debentures or portions
thereof on the date fixed for redemption and provision satisfactory to the
Trustee shall have been made for the giving of notice of such redemption, such
Debentures, or portions thereof, shall thereupon, for all purposes of this
Indenture, be deemed to be no longer Outstanding, and the holders thereof shall
be entitled to no rights thereunder or hereunder, except the right to receive
payment of the applicable redemption price, together with interest accrued to
the date fixed for redemption, on or after the date fixed for redemption of such
Debentures or portions thereof and the right to convert such Debentures or
portions thereof, if the terms of such Debentures provide for convertibility
pursuant to Section 2.2, at or prior to the close of business on the date fixed
for redemption.
SECTION 5.7. Conversion arrangement on call for redemption. In
connection with any redemption of Debentures, the Company may arrange for the
purchase and conversion of any Debentures called for redemption by an agreement
with one or more investment bankers or other purchasers to purchase such
Debentures by paying to the Trustee or the Paying Agent in trust for the
Debentureholders, on or before 10:00 a.m., New York time, on the redemption
date, an amount no less than the redemption price, together with interest, if
any, accrued to the redemption date of such Debentures, in immediately available
funds. Notwithstanding anything to the contrary contained in this Article V, the
obligation of the Company to pay the redemption price of such Debentures,
including all accrued interest, if any, shall be deemed to be satisfied and
discharged to the extent such amount is so paid by such purchasers. If such an
agreement is entered into, any Debentures not duly surrendered for conversion by
the holders thereof may, at
30
the option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such holders and (notwithstanding anything to
the contrary contained in Article XIII) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the last day
on which Debentures of such series called for redemption may be converted in
accordance with this Indenture and the terms of such Debentures, subject to
payment of the above amount aforesaid. The Trustee or the Paying Agent shall
hold and pay to the Debentureholders whose Debentures are selected for
redemption any such amount paid to it in the same manner as it would moneys
deposited with it by the Company for the redemption of Debentures. Without the
Trustee's and the Paying Agent's prior written consent, no arrangement between
the Company and such purchasers for the purchase and conversion of any
Debentures shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Company agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense arising out of or in connection with any
such arrangement for the purchase and conversion of any Debentures between the
Company and such purchasers, including the costs and expenses incurred by the
Trustee and the Paying Agent in the defense of any claim or liability arising
out of or in connection with the exercise or performance of any of its powers,
duties, responsibilities or obligations under this Indenture.
ARTICLE VI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 6.1. Satisfaction and discharge of Indenture with respect to
Debentures of any series. If (a) the Company shall deliver to the Trustee for
cancellation all Debentures of any series theretofore authenticated (other than
any such Debentures which shall have been destroyed, lost or stolen and in lieu
of or in substitution for which other such Debentures shall have been
authenticated and delivered or Debentures for whose payment money (or other form
of payment if permitted by the terms of such Debentures) has theretofore been
held in trust and thereafter repaid to the Company, as provided in Section 6.3)
and not theretofore canceled, or (b) the Company shall irrevocably deposit
(subject to Section 6.3) with the Trustee or Paying Agent as trust funds the
entire amount in cash or U.S. Government Obligations sufficient to pay at
maturity or upon redemption all of the Debentures of such series (other than any
Debentures which shall have been destroyed, lost or stolen and in lieu of or in
substitution for which other Debentures shall have been authenticated and
delivered or Debentures for whose payment money (or other form of payment if
permitted by the terms of such Debentures) has theretofore been held in trust
and thereafter repaid to the Company, as provided in Section 6.3) not
theretofore paid, surrendered or delivered to the Trustee for cancellation,
including the principal, premium, if any, and interest due or to become due to
such date of maturity or redemption date, as the case may be, and if in either
case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company and the Company shall deliver to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that in the
opinion of the signers all conditions precedent to the satisfaction and
discharge of this Indenture with respect to the Debentures of such series have
been complied with (and, in the event that such deposit shall be made more than
one year
31
prior to the maturity of the Debentures of such series, such Opinion of Counsel
shall also state that such deposit will not result in an obligation of the
Company, the Trustee or the trust fund created by such deposit to register as an
investment company under the Investment Company Act of 1940, as amended) and a
certificate (upon which the Trustee may rely) of a firm of independent public
accountants of recognized national standing selected by the Board of Directors
(who may be the regular accountants employed by the Company) stating that the
cash, if any, and U.S. Government Obligations, if any, deposited as set forth
above are sufficient to pay at maturity or upon redemption all of the Debentures
of such series as set forth above, then, except with respect to the remaining
rights of conversion of any Debentures the terms of which provide for conversion
(which shall continue in full force and effect pursuant to the terms set forth
in Article XIII to the extent provided for in such terms) or to rights of
exchange or registration of transfer or of the Company's right of optional
redemption of any Debentures of such series, this Indenture shall cease to be of
further effect with respect to the Debentures of such series, and the Trustee,
on demand of and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture with
respect to the Debentures of such series. Notwithstanding the satisfaction and
discharge of this Indenture with respect to the Debentures of such series, the
obligations of the Company to the Trustee under Section 11.2 shall survive, and
if moneys or U.S. Government Obligations shall have been irrevocably deposited
with the Trustee or Paying Agent pursuant to clause (b) of this Section, the
obligations of the Trustee under Section 6.2 and the first paragraph of Section
6.3 shall survive.
In order to have money available on a payment date to pay the principal
of, premium, if any, or interest, if any, on the Debentures, the U.S. Government
Obligations shall be payable as to principal or interest on or before such
payment date in such amounts as will provide the necessary money. Such U.S.
Government Obligations shall not be callable at the issuer's option.
SECTION 6.2. Deposits for payment or redemption of Debentures to be
held in trust. Subject to the provisions hereinafter contained in this Article
VI, any moneys or U.S. Government Obligations (or other form of payments if
permitted by the terms of such Debenture) which at any time shall be deposited
by the Company, or on its behalf with the Trustee or the Paying Agent, for the
purpose of paying or redeeming any of the Debentures of any series shall be held
in trust and applied by the Trustee to the payment to the holders of the
particular Debentures for the payment or redemption of which such moneys (or
other form of payments if permitted by the terms of such Debenture) have been
deposited, of all sums due and to become due thereon for principal, premium, if
any, and interest, upon presentation and surrender of such Debentures at the
office or agency of the Company maintained as provided in this Indenture.
Neither the Company nor the Trustee (except as provided in Section 11.2) nor any
Paying Agent shall be required to pay interest on any moneys so deposited.
SECTION 6.3. Repayment of moneys. Any moneys or U.S. Government
Obligations deposited with the Trustee or any Paying Agent remaining unclaimed
by the holders of Debentures for two years after the date upon which the
principal of or interest on such Debentures shall have become due and payable,
shall (unless otherwise required by mandatory
32
provisions of applicable escheat or abandoned or unclaimed property law) be
repaid to the Company by the Trustee or Paying Agent and such holders shall
(unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law) thereafter be entitled to look to the
Company only for payment thereof; provided, however, that, before being required
to make any such payment to the Company, the Trustee or Paying Agent may, at the
expense and written direction of the Company, cause to be published once, in an
Authorized Newspaper, a notice that such moneys remain unclaimed and that, after
the date set forth in said notice, the balance of such moneys then unclaimed
will be returned to the Company.
Upon the satisfaction and discharge of this Indenture, all moneys then
held by any Paying Agent other than the Trustee hereunder shall, upon demand of
the Company, be repaid to it and thereupon such paying agent shall be released
from all further liability with respect to such moneys.
The Trustee or any Paying Agent shall deliver or pay to the Company
from time to time upon a request in writing by the Company any moneys or U.S.
Government Obligations (or the principal or interest on such U.S. Government
Obligations) held by it as provided in Section 6.1 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof to the Trustee, are then in excess of the amount
thereof which then would have been required to be deposited for the purpose for
which such money or U.S. Government Obligations were deposited or received.
ARTICLE VII
REMEDIES UPON DEFAULT
SECTION 7.1. Events of Default defined-acceleration of maturity upon
default-waiver of default after acceleration. The following events are hereby
defined for all purposes of this Indenture (except where the term is otherwise
defined for specific purposes) as Events of Default with respect to Debentures
of a particular series, unless it is either inapplicable to a particular series
or is specifically deleted or modified as contemplated by Section 2.2 for the
Debentures of such series, in addition to any other events as may be defined as
Events of Default pursuant to Section 2.2 for the Debentures of such series:
(a) Failure of the Company to pay or provide for payment of
the principal of or premium, if any, on any of the Debentures of such
series, when and as the same shall become due and payable, whether at
maturity thereof, by call for redemption, through any mandatory sinking
fund, by redemption at the option of the holder of any Debenture
pursuant to the terms of such Debenture, by declaration of acceleration
or otherwise; or
(b) Failure of the Company to pay or provide for payment of
any installment of interest on any of the Debentures of such series,
when and as the same shall become due and payable, which failure shall
have continued for a period of 30 days; or
33
(c) Failure of the Company to perform or observe any other of
the covenants or agreements on the part of the Company in this
Indenture or in the Debentures of such series (other than a covenant or
agreement which has expressly been included in this Indenture solely
for the benefit of Debentures of any series other than that series or
is expressly made inapplicable to the Debentures of such series
pursuant to by Section 2.2), which failure shall have continued for a
period of 90 days after written notice by certified or registered mail
given to the Company by the Trustee hereunder or to the Company and to
the Trustee from the holders of not less than 25% of the aggregate
principal amount of Debentures then Outstanding of such series under
this Indenture specifying such Event of Default or failure and
requesting that it be remedied and stating that such notice is a notice
of an event which, if continued for 90 days after such written notice,
will become an Event of Default; or
(d) The institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking relief under
any Bankruptcy Law or the consent by it to the institution of
proceedings thereunder or the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by the Company of an
assignment for the benefit of creditors, or the admission by the
Company in writing of its inability to pay its debts generally as they
become due; or
(e) The entry of a decree or order by a court having
jurisdiction for relief in respect of the Company, or adjudging the
Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any Bankruptcy Law or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its
property, or ordering the winding-up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for
a period of 180 consecutive days.
If one or more Events of Default shall happen and be continuing with
respect to Debentures then outstanding of any series, then, and in each and
every such case, either the Trustee, by notice in writing to the Company, or the
holders of not less than 25% in aggregate principal amount of the Debentures
then Outstanding of such series, by notice in writing to the Company and to the
Trustee, may declare the principal amount (or, if the Debentures of such series
are Original Issue Discount Debentures, such portion of the principal amount as
may be specified in the terms of the Debentures of such series) of all
Debentures of such series and/or such other amount or amounts as the Debentures
or supplemental indenture with respect to such series may provide, if not
already due and payable, to be immediately due and payable; and upon any such
declaration all Debentures of such series shall become and be immediately due
and payable, anything in this Indenture or in any of the Debentures of such
series contained to the
34
contrary notwithstanding. This provision, however, is subject to the condition
that if, at any time after the principal of (and/or such other specified amount
on) the Debentures of such series shall so become due and payable, and before
any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Debentures of such series and the principal of (and/or
such other specified amount) and premium, if any, on any and all Debentures of
such series which shall have become due otherwise than by acceleration, with
interest on such principal (and/or such other specified amount) and premium, if
any, and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest, at the rate specified in
the Debentures of such series (or, if no such rate is specified, at the rate
borne by the Debentures of such series), to the date of such payment or deposit,
and the reasonable compensation and expenses of the Trustee, and any and all
defaults under this Indenture with respect to the Debentures or such series,
other than the nonpayment of principal of (and/or such other specified amount)
or premium, if any, and accrued interest on Debentures of such series which
shall have become due by acceleration, shall have been remedied, then and in
every such case the Trustee shall, upon written request or consent of the
holders of a majority in aggregate principal amount of the Debentures then
Outstanding of such series delivered to the Company and to the Trustee, waive
such default and its consequences and rescind or annul such declaration and its
consequences, but no such waiver, rescission or annulment shall extend to or
affect any subsequent default, or impair any right consequent thereon.
For all purposes under this Indenture, if the portion of the principal
amount as may be specified in the terms of any Original Issue Discount
Debentures shall have been accelerated and declared due and payable pursuant to
the provisions hereof, then, from and after such declaration, unless such
declaration has been rescinded and annulled, payment of such portion of the
principal amount thereof, together with interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such Original
Issue Discount Debentures.
SECTION 7.2. Covenant of Company to pay to Trustee whole amount due on
default in payment of Principal or interest-Trustee may recover judgment for
whole amount due-application of moneys received by the Trustee. In case the
Company shall commit an Event of Default with respect to the Debentures of any
series described in Section 7.1(a) or (b), then upon demand of the Trustee, the
Company shall pay to the Trustee, for the benefit of the holders of the
Debentures then Outstanding of such series, the whole amount which then shall
have become due on all such Debentures of such series for principal, premium, if
any, and interest, with interest on the overdue principal and premium, if any,
and (to the extent that payment of such interest is enforceable under applicable
law) upon overdue installments of interest, at the rate specified in the
Debentures of such series (or, if no such rate is specified, at the rate borne
by the Debentures of such series), and in addition thereto, such additional
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, liabilities, disbursements and
advances of the Trustee, any predecessor Trustee, their agents and counsel. In
case the Company shall pay the same in accordance with the provision of this
35
Section 7.2 and, prior to such payment neither the Trustee nor the holders of
the Debentures then Outstanding of such series shall have taken any steps to
begin enforcing their rights under this Indenture and so long as no additional
Event of Default with respect to the Debentures of such series shall have
occurred, from and after such payment, the Event of Default giving rise to the
demand by the Trustee pursuant to this Section 7.2 shall be deemed to be no
longer continuing and shall be deemed to have thereupon been remedied, cured or
waived without further action upon the part of either the Trustee or any of the
Debentureholders. In case the Company shall fail to pay the same forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute any judicial proceedings at law or in equity for the collection of
the sums so due and unpaid and may prosecute such proceedings to judgment or
final decree, and may enforce the same against the Company or any other obligor
upon the Debentures of such series 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 Debentures of such series, wherever situated. The
right of the Trustee to recover such judgment shall not be affected by the
exercise of any other right, power or remedy for the enforcement of the
provisions of this Indenture.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Debentures or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of any Debentures
shall then be due and payable as therein expressed or by declaration of
acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered to file and prove a claim for the whole amount
of principal, premium, if any, and interest owing and unpaid in respect of the
Debentures of any series for which it serves as Trustee 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, any predecessor Trustee, their agents
and counsel) and of the Debentureholders of such series allowed in such judicial
proceeding, and to receive payment of or on account of such claims and to
distribute the same after the deduction of its charges and expenses; and any
receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any judicial proceeding is hereby irrevocably authorized and
instructed by each of the Debentureholders of such series 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 Debentureholders of such series, to pay to the
Trustee any amount due it or any predecessor Trustee, for compensation and
expenses, including counsel fees incurred up to the date of such distribution.
Nothing contained in this Indenture shall be deemed to give to the Trustee any
right to accept or consent to any plan or reorganization, arrangement,
adjustment or composition affecting the Debentureholders or the rights of any
Debentureholder, or to authorize the Trustee to vote in respect of the claim of
any Debentureholder in any such proceeding.
Any moneys or property received by the Trustee under this Section 7.2
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of
36
such moneys or property on account or principal, premium, if any, or interest,
upon presentation of the several Debentures of the series in respect of which
such moneys were received, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collections,
and reasonable compensation to the Trustee, its agents, attorneys and
counsel, and all advances made and expenses and liabilities incurred by
the Trustee, except as a result of its negligence or bad faith and all
other amounts owing to the Trustee or any predecessor Trustee pursuant
to Section 11.2 hereof;
Second: In case the principal of the Outstanding Debentures in
respect of which such moneys were received shall not have become due
and be unpaid, to the payment of interest on such Debentures, in the
order of the maturity of the installments of such interest, with
interest (so far as may be lawful) upon the overdue installments of
interest at the rate specified in such Debentures (or, if no such rate
is specified, at the rate borne by the Debentures of such series), such
payments to be made ratably to the persons entitled thereto;
Third: In case the principal of the Outstanding Debentures in
respect of which such moneys were received and/or such other amount or
amounts as the Debentures or supplemental indenture with respect to
such series shall provide, shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid
upon such Debentures for principal (and/or such other specified
amount), premium, if any, and interest, with interest on the overdue
principal (and/or such other specified amount), premium, if any, and
(so far as may be lawful) upon overdue installments of interest, at the
rate specified in such Debentures (or, if no such rate is specified, at
the rate borne by the Debentures of such series), and in case such
moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon such Debentures, then to the payment of such principal
(and/or such other specified amount), premium, if any, and interest,
with interest on the overdue principal (and/or such other specified
amount), premium, if any, and (so far as may be lawful) upon overdue
installments of interest, at the rate specified in such Debentures (or,
if no such rate is specified, at the rate borne by the Debentures of
such series), without preference or priority of principal (and/or such
other specified amount) and premium, if any, over interest, or of
interest over principal (and/or specified amount) and premium, if any,
or of any installment of interest over any other installment of
interest, or of any such Debenture over any other such Debenture,
ratably to the aggregate of such principal (and/or such other specified
amount), premium, if any, and accrued and unpaid interest;
Fourth: To the payment of the remainder, if any, to the
Company, its successors or assigns, or to whomever may be so lawfully
entitled to receive the same, or as a court of competent jurisdiction
may direct.
37
SECTION 7.3. Trustee may enforce rights of action without possession of
Debentures. All rights of action under this Indenture or any of the Debentures
Outstanding of any series hereunder enforceable by the Trustee may be enforced
by the Trustee without the possession of any of the Debentures or the production
thereof at the trial or other proceedings relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought for the ratable benefit of
the holders of the Debentures with respect to which the rights are being
exercised, subject to the provisions of this Indenture.
SECTION 7.4. Delays or omissions not to impair any rights or powers
accruing upon default. No delay or omission of the Trustee or of the
Debentureholders to exercise any rights or powers accruing upon any default
which shall not have been remedied shall impair any such right or power, or
shall be construed to be a waiver of any such default or acquiescence therein;
and every power and remedy given by this Article VII to the Trustee and the
holders of the Debentures of any series may be exercised from time to time and
as often as may be deemed expedient by the Trustee or by the holders of the
Debentures of such series.
SECTION 7.5. In Event of Default Trustee may protect and enforce its
rights by appropriate proceedings-holders of majority in aggregate Principal
amount of Debentures of a series may waive default. If any one or more Events of
Default shall happen and be continuing, the Trustee may, in its discretion,
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee, being advised by its counsel,
shall deem most effectual to protect and enforce any of said rights, either by
suit in equity or by action at law or by proceeding in bankruptcy or otherwise,
whether for the specific performance of any covenant or agreement contained in
this Indenture or in aid of the exercise of any power granted in this Indenture,
or to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
Provided the Debentures of any series shall not then be due and payable
by reason of a declaration pursuant to Section 7.1 hereof, the holders of a
majority in aggregate principal amount of the Debentures of such series then
Outstanding may on behalf of the holders of all of the Debentures of such series
waive by written notice any past default hereunder and its consequences, except
a default in the payment of interest on or principal and premium, if any, of any
of the Debentures of such series. In the case of any such waiver, the Company,
the Trustee and the holders of the Debentures of such series shall be restored
to their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 7.6. Holders of majority in aggregate Principal amount of
Debentures of any series may direct exercise of remedies. The holders of a
majority in aggregate principal amount of the Debentures then Outstanding of any
series shall have the right, by an instrument in writing executed and delivered
to the Trustee, to direct the time, method and place of conducting any
proceedings for any remedy available to the Trustee, or of exercising any power
or trust conferred upon the Trustee under this Indenture, with respect to the
Debentures of such
38
series; provided, however, that subject to the provisions of Section 11.1 of
this Indenture, the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the action
or proceedings so directed may not lawfully be taken or if the Trustee in good
faith shall, by Responsible Officers, determine that the action or proceedings
so directed would involve the Trustee in personal liability, or would be unduly
prejudicial to the holders of the Debentures of such series not joining in such
direction, and the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 7.7. Limitation on suits by Debentureholders. No holder of any
Debenture of any series shall have the right to institute any suit, action or
proceeding, in equity or at law, for the execution of any trust or power hereof,
or for the enforcement of any other remedy under or upon this Indenture or the
Debentures of such series, unless the holders of a majority in aggregate
principal amount of the Debentures then Outstanding of such series shall have
made written request upon the Trustee and shall have afforded to it a reasonable
opportunity either to proceed to exercise the powers hereinbefore granted or to
institute such suit, action or proceeding in its own name, as Trustee hereunder,
and shall have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee
shall have refused or neglected to comply with such request for 60 days after
its receipt of such request and no direction inconsistent with such request
shall have been given to the Trustee pursuant to Section 7.6; it being
understood and intended that no one or more holders of Debentures of any series
shall have any right under this Indenture or under the Debentures, by his or
their action, to enforce any right hereunder except in the manner herein
provided, and that all proceedings hereunder, at law or in equity, shall be
instituted, had and maintained in the manner herein provided and for the ratable
benefit of all holders of the Debentures of such series. Notwithstanding any
provision of this Indenture to the contrary, the right, which is absolute and
unconditional, of any Debentureholder to receive the payment of the principal
of, premium, if any, and interest on his Debentures at and after the respective
due dates (including maturity by call for redemption, through any sinking fund,
declaration unless annulled pursuant to Section 7.1 hereof, or otherwise), of
such principal, premium, if any, or interest, or the right, which is also
absolute and unconditional, of any Debentureholder to require conversion of his
Debentures pursuant to Article XIII hereof if the terms of such Debentures
provide for convertibility pursuant to Section 2.2, or the right to institute
suit for the enforcement of any such payment at or after such due dates or of
such right to convert, shall not be impaired or affected without the consent of
such holder, and the obligation of the Company, which is also absolute and
unconditional, to pay the principal of, premium, if any, and interest on each of
the Debentures to the respective holders thereof at the times and places in the
Debentures expressed shall not be impaired or affected.
Notwithstanding anything to the contrary contained in this Section 7.7,
the parties to this Indenture and the Debentureholders agree as follows:
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
39
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 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; provided, however, that the
provisions of this paragraph shall not apply to any suit instituted, directly or
through an agent or agents, by the Trustee, to any suit instituted by any
Debentureholder of any series, or group of Debentureholders of any series,
holding in the aggregate more than 10% in aggregate principal amount of the
Debentures then Outstanding of such series or to any suit instituted by any
Debentureholder of any series for the enforcement of the payment of the
principal of, premium, if any, or interest on, any Debenture of such series at
or after the respective due dates of such principal, premium, if any, or
interest expressed in his Debenture of such series.
SECTION 7.8. No Debentures owned or held by, for the account of or for
the benefit of the Company to be deemed Outstanding for purpose of payment or
distribution. No Debentures owned or held by, for the account of or for the
benefit of the Company or any Affiliate (other than Debentures pledged in good
faith which would be deemed Outstanding under the provisions of Section 3.3)
shall be deemed Outstanding for the purpose of any payment or distribution
provided for in this Article VII.
SECTION 7.9. Company and Trustee restored to former position on
discontinuance or abandonment of proceedings. If the Trustee shall have
proceeded to enforce any right under this Indenture with respect to the
Debentures of any series, and such proceedings shall have been discontinued or
abandoned because of waiver, or for any other reason, or shall have been
determined adversely to the Trustee, then, and in any such case, the Company,
the Trustee and the Debentureholders of such series shall each be restored to
their former positions and rights hereunder, and all rights, remedies and powers
of the Trustee shall continue as though no such proceeding had been taken.
ARTICLE VIII
EVIDENCE OF ACTION BY DEBENTUREHOLDERS
SECTION 8.1. Evidence of action by Debentureholders. Any demand,
request, consent, proxy or other instrument which this Indenture may require or
permit to be signed and executed by the Debentureholders of any series may be in
any number of concurrent instruments of similar tenor, and may be signed or
executed by such Debentureholders in person or by an attorney duly authorized in
writing. Proof of the execution of any such demand, request, consent, proxy or
other instrument, or of a writing appointing any such attorney, shall be
sufficient for any purpose of this Indenture if made in the following manner:
the fact and date of the execution by any person of such demand, request,
consent, proxy or other instrument or writing may be proved by the certificate
of any notary public, or other officer authorized to take acknowledgments of
deeds to be recorded in any state or country, that the person signing such
request or other instrument or writing acknowledged to him the execution
thereof, or by an affidavit of a witness
40
of such execution. Where such execution is by an officer of a corporation or
association or a member of a partnership on behalf of such corporation,
association or partnership, or by a trustee or other fiduciary, such certificate
or affidavit shall also constitute sufficient proof of his authority. The
Trustee may nevertheless in its discretion accept such other proof or require
further proof of any matter referred to in this Section 8.1 as it shall deem
reasonable. The ownership of Debentures shall be proved by the registry books or
by a certificate of the registrar thereof.
The Trustee shall not be bound to recognize any person as a
Debentureholder of any series unless and until his title to the Debentures of
such series held by him is proved in the manner in this Article VIII provided.
Any demand, request, direction, waiver, consent, vote or other action
of the holder of any Debenture shall be conclusive and shall bind all future
holders of the same Debenture and of any Debenture issued in exchange or
substitution therefor irrespective of whether or not any notation in regard
thereto is made upon such Debenture. Any such holder, however, may revoke the
consent as to his Debenture or portion thereof. Such revocation shall be
effective only if the Trustee receives the notice of revocation before the date
the amendment, supplement, waiver or other action becomes effective. An
amendment, supplement, waiver or other action shall become effective on receipt
by the Trustee of written consents from the Debentureholders of the requisite
percentage in aggregate principal amount of the Outstanding Debentures of the
relevant series. After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Debentureholder of each series of Debentures so
affected.
The Company or the Trustee, as applicable, may set a date for the
purpose of determining the Debentureholders entitled to consent, vote or take
any other action referred to in this Section 8.1, which date shall be not less
than 10 days nor more than 60 days prior to the taking of the consent, vote or
other action.
ARTICLE IX
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 9.1. Immunity of incorporators, stockholders, officers,
directors and employees. No recourse shall be had for the payment of the
principal of, premium, if any, or interest on any Debenture or for any claim
based thereon or otherwise in any manner in respect thereof, or in respect of
this Indenture, to or against any subsidiary, incorporator, stockholder,
officer, director or employee, as such, past, present or future, of the Company
or any subsidiary, incorporator, stockholder, officer, director or employee, as
such, past, present or future, of any predecessor or successor corporation,
either directly or through the Company or such predecessor or successor
corporation, whether by virtue of any constitutional provision or statute or
rule of law, or by the enforcement of any assessment or penalty, or in any other
manner, all such liability
41
being expressly waived and released by the acceptance of any Debenture and as
part of the consideration for the issue thereof.
ARTICLE X
MERGER, CONSOLIDATION, SALE OR LEASE
SECTION 10.1. Documents required to be filed with the Trustee upon
consolidation, merger, sale, transfer or lease - execution or supplemental
indentures - acts of successor corporation. Nothing in this Indenture or in the
Debentures shall prevent any consolidation or merger of the Company with or into
any other corporation, or any consolidation or merger of any other corporation
with or into the Company, or any sale, transfer or lease of all or substantially
all of the property and assets of the Company to any other corporation lawfully
entitled to acquire the same; provided, however, and the Company hereby
covenants and agrees, that any such consolidation, merger, sale, transfer or
lease shall be upon the condition that (a) the due and punctual payment of the
principal of, premium, if any, and interest on all the Debentures according to
their tenor, and the due and punctual performance and observance of all the
terms, covenants and conditions of this Indenture to be kept or performed by the
Company shall, by an indenture supplemental hereto complying with the provisions
of Section 12.1, executed and delivered to the Trustee, be expressly assumed by
the corporation (other than the Company) formed by or resulting from any such
consolidation or merger, or which shall have received the transfer or lease of
all or substantially all of the property and assets of the Company, just as
fully and effectually as if such successor corporation had been an original
party hereto; and (b) the Company or such successor corporation, as the case may
be, shall not, immediately after such consolidation, merger, sale, transfer or
lease be in default in the performance of any such covenant or condition.
Thereafter, unless otherwise specified pursuant to Section 2.2 for the
Debentures of any series, all obligations of the predecessor corporation under
the Debentures of such series shall terminate. In the event of any such sale,
transfer or lease, the predecessor Company may be dissolved, wound up and
liquidated at any time thereafter.
Every such successor corporation, upon executing an indenture
supplemental hereto as provided in this Section 10.1 in form satisfactory to the
Trustee, shall succeed to and be substituted for the Company with the same
effect as if it had been named herein as the Company; and any order, certificate
or resolution of the Board or officers of the Company provided for in this
Indenture may be made by like officials of such successor corporation. Such
successor corporation may thereupon cause to be signed, either in its own name
or in the name of the Company, with such suitable reference, if any, to such
consolidation, merger, sale, transfer or lease as may be required by the
Trustee, any or all of the Debentures which shall not theretofore have been
signed by the Company and authenticated by the Trustee or any Authenticating
Agent; and upon the written order of such successor corporation in lieu of the
Company, signed by the President or any Vice President and Treasurer or any
Assistant Treasurer of such successor corporation, and subject to all the terms,
conditions and restrictions herein prescribed with respect to the authentication
and delivery of the Debentures, the Trustee or any Authenticating Agent shall
42
authenticate and deliver any and all Debentures which shall have been previously
signed by the proper officers of the Company and delivered to the Trustee or any
Authenticating Agent for authentication and any of such Debentures which such
successor corporation shall thereafter, in accordance with the provisions of
this Indenture, cause to be signed and delivered to the Trustee or any
Authenticating Agent for such purpose. All Debentures of any series so
authenticated and delivered shall in all respects have the same rank as the
Debentures of such series theretofore or thereafter authenticated and delivered
in accordance with the terms of this Indenture.
SECTION 10.2. Trustee may rely upon Opinion of Counsel. The Trustee may
receive and shall, subject to the provisions of Section 11.1 of this Indenture,
be fully protected in relying upon an Officers' Certificate and Opinion of
Counsel as conclusive evidence that any supplemental indenture executed under
the foregoing Section 10.1 complies with the foregoing conditions and provisions
of this Article X.
ARTICLE XI
CONCERNING THE TRUSTEE
SECTION 11.1. Acceptance of Trust - responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default which
may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture or in the Trust
Indenture Act of 1939, and no implied covenants or conditions shall be
read into this Indenture against the Trustee. In case an Event of
Default with respect to the Debentures of a particular series has
occurred (but only during the continuance thereof), the Trustee shall
exercise with respect to the Debentures of such series such of the
rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee pursuant to any provision of this Indenture,
shall examine them to determine whether they conform to the
requirements of this Indenture.
(b) 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
(i) prior to the occurrence of an Event of Default
with respect to the Debentures of any series hereunder and
after the curing or waiving of all Events of Default with
respect to the Debentures of such series which may have
occurred,
43
the Trustee shall not be liable with respect to the Debentures
of such series except for the performance of such duties as
are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee, but the duties and obligations of the
Trustee with respect to the Debentures of such series, prior
to the occurrence of an Event of Default with respect to the
Debentures of such series and after the curing or waiving of
all Events of Default with respect to the Debentures of such
series which may have occurred, shall be determined solely by
the express provisions of this Indenture;
(ii) Subject to the limitations contained in
subsection (a) of this Section 11.1, prior to the occurrence
of an Event of Default with respect to the Debentures of any
series hereunder and after the curing or waiving of all events
of Default with respect to the Debentures of such series which
may have occurred, and in the absence of bad faith on the part
of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed herein, upon certificates or opinions conforming to
the requirements of this Indenture;
(iii) the Trustee shall not be personally liable for
any error of judgment made in good faith by a Responsible
Officer or Officers of the Trustee unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts; and
(iv) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken
by it in good faith in accordance with the direction of the
holders of not less than a majority in aggregate principal
amount of the Debentures then Outstanding 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 Debentures of such
series.
(c) Subject to the limitations contained in subsections (a)
and (b) of this Section 11.1, the recitals contained herein and in the
Debentures (except in the Trustee's certificate of authentication)
shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this
Indenture or of the Debentures except that the Trustee represents that
it is duly authorized to execute and deliver this Indenture and to
perform its obligations hereunder.
(d) Subject to the limitations contained in subsections (a)
and (b) of this Section 11.1:
(i) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, opinion, notice, consent, request, order,
44
appraisal, report, bond or other paper or document believed by
it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or Opinion of
Counsel;
(iii) whenever in the administration of the trusts of
this Indenture, prior to an Event of Default hereunder and
after the curing or waiving of all Events of Default which may
have occurred, the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively
proved and established by an Officers' Certificate delivered
to the Trustee, and such certificate shall be full warrant to
the Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture upon the faith thereof;
(iv) the Trustee shall be under no obligation to
exercise any of the trusts or powers hereof at the request,
order or direction of any of the Debentureholders, pursuant to
the provisions of this Indenture, unless such Debentureholders
shall have offered to the Trustee reasonable indemnity against
all the costs, expenses and liabilities which might be
incurred therein;
(v) the Trustee shall not be liable for any action
taken or omitted to be taken by it in good faith and believed
by it to be authorized or within the discretion or power
conferred upon it by this Indenture;
(vi) prior to the occurrence of an Event of Default
with respect to the Debentures of any series hereunder and
after the curing or waiving of all Events of Default with
respect to the Debentures of such series which may have
occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, opinion, notice, consent, request,
order, appraisal, report, bond or other document or instrument
concerning such series, unless requested in writing to do so
by the holders of not less than a majority in aggregate
principal amount of the Debentures then Outstanding of such
series; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee (subject to
the limitations contained in subsections (a) and (b) of this
Section 11.1), not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expense
or liability as a condition to so proceeding; and provided,
further, that nothing in this subdivision (d)(vi) shall
require the Trustee to give the Debentureholders any notice
other than that
45
required by Section 11.3 hereof. The reasonable expense of
every such investigation shall be paid by the Company or, if
paid by the Trustee, shall be repaid by the Company upon
demand;
(vii) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by
it hereunder; and
(viii) none of the provisions of this Indenture shall
require the Trustee to expend or risk its own funds or
otherwise incur any personal 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 11.2. Trustee to be entitled to compensation - Trustee not to
be accountable for application of proceeds - moneys held by Trustee to be trust
funds. The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) for services rendered by it in the execution of the trusts hereby
created, and shall also be entitled to payment of reasonable expenses and
disbursements actually made or incurred hereunder, including the reasonable fees
and expenses of counsel, accountants and of all persons not regularly in its
employ, and all taxes which may have been assessed against the Trustee as such
on any funds on deposit with the Trustee. The Company also agrees to indemnify
each of the Trustee and any predecessor Trustee for and hold it harmless against
loss, liability or expense incurred arising out of or in connection with the
acceptance or administration of this trust or performance of its duties
hereunder, including the cost and expenses of defending itself against any claim
of liability in the premises, except to the extent that such loss, liability or
expense is incurred due to the negligence or bad faith of the Trustee or
predecessor Trustee. If any property other than cash shall at any time be
subject to a lien in favor of the Debentureholders, the Trustee, if and to the
extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property to such
lien, shall be entitled to make advances for the purpose of preserving such
property or of discharging tax liens or other prior liens or encumbrances
thereon. The obligations of the Company under this Section 11.2 to compensate
the Trustee and to indemnify, pay or reimburse the Trustee or any predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge or any
other termination pursuant to any Bankruptcy Law hereof. Such additional
indebtedness shall be secured by a lien prior to that of the Debentures of all
series with respect to which the Trustee acts as Trustee upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the benefit of the holders of particular Debentures.
46
The Trustee shall not be accountable for the use or application by the
Company of any Debentures authenticated and delivered hereunder or of the
proceeds of such Debentures, or for the use or application of any moneys paid
over by the Trustee in accordance with any provision of this Indenture, or for
the use or application of any moneys received by any paying agent.
All moneys received by the Trustee in trust under or pursuant to any
provision of this Indenture shall constitute trust funds for the purposes for
which they were paid or were held, but need not be segregated in any manner from
any other moneys and may be deposited by the Trustee, under such conditions as
may be prescribed by law, in its general banking department, and the Trustee
shall not be liable for any interest thereon, except as otherwise agreed with
the Company.
The parties hereto, and the Debentureholders by their acceptance of
their Debentures, hereby agree, that when the Trustee incurs expenses and
renders services after an Event of Default occurs, such expenses and the
compensation for such services are intended by the holders of the Debentures and
Company to constitute expenses of administration under any Bankruptcy Law.
SECTION 11.3. Trustee to give Debentureholders notice of default. The
Trustee shall give to the Debentureholders of any series notice of the happening
of all defaults with respect to the Debentures of such series known to it,
within 90 days after the occurrence thereof unless such defaults shall have been
cured before the giving of such notice; provided, however, that, except in the
case of a default resulting from the failure to make any payment of principal
of, premium, if any, or interest on the Debentures of any series, or in the
payment of any mandatory sinking fund installment with respect to the Debentures
of such series, the Trustee may withhold the giving of such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Debentureholders
of such series. For the purpose of this Section 11.3, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default. Such notice shall be given to the Debentureholders of such
series in the manner and to the extent provided in subsection (c) of Section
11.10.
SECTION 11.4. Trustee acquiring conflicting interest must eliminate it
or resign. Reference is made to Section 310(b) of the Trust Indenture Act of
1939, as amended, and with respect to the Debentures of each series, the Trustee
shall comply therewith. To the extent permitted under Section 310(b)(1) thereof,
the Trustee shall not be deemed to have a conflicting interest by virtue of
being a trustee under this Indenture with respect to Debentures of more than one
series.
SECTION 11.5. Eligibility of Trustee. There shall at all times be a
corporate Trustee under this Indenture which shall be a bank or trust company
organized and doing business under the laws of the United States or of any State
or the District of Columbia and having a combined capital and surplus of not
less than $50,000,000 which is authorized under the laws of its
47
jurisdiction of incorporation to exercise corporate trust powers and is subject
to supervision or examination by Federal, State or District of Columbia
authority and which has an office or agency in New York, New York. If the
Trustee publishes reports of conditions at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, the
combined capital of the Trustee shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If the
Trustee shall at any time cease to meet the foregoing standards of eligibility,
then such Trustee shall resign immediately in the manner and with the effect
specified in Section 11.6.
SECTION 11.6. Resignation or removal of Trustee.
(a) Subject to the limitations contained in subsection (d) of
this Section 11.6, the Trustee may resign and be discharged from the
trust hereby created with respect to the Debentures of one or more
series by giving notice thereof to the Company and by giving notice
thereof to the Debentureholders of such series, in the manner and to
the extent provided in subsection (c) of Section 11.10. Upon receiving
such notice of resignation, the Company shall promptly appoint a
successor trustee or trustees (it being understood that any such
successor trustee may be appointed with respect to the Debentures of
one or more or all of such series with respect to which the resigning
trustee has resigned and that at any time there shall be only one
trustee with respect to the Debentures of any particular series) by
written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the
resigning trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted
appointment within 60 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any
Debentureholder of such series who has been a bona fide holder of a
Debenture or Debentures of such series for at least six months may on
behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 11.4 with respect to the Debentures of
any series after written request therefor by the Company or by
any Debentureholder of such series who has been a bona fide
holder of a Debenture or Debentures of such series for at
least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.5 with respect to
the Debentures of any series and shall fail to resign after
written request therefor by the Company or by any such
Debentureholder; or
48
(iii) the Trustee shall become incapable of acting,
or 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
then, in such case, the Company may remove the Trustee with respect to
all Debentures of such series and appoint a duly qualified successor
trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Company, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor
trustee so appointed, or, subject to the provisions of Section 7.7, any
Debentureholder who has been a bona fide holder of a Debenture or
Debentures 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 with respect to
all Debentures of such series and the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a duly
qualified successor trustee with respect to the Debentures of such
series.
(c) The holders of a majority in aggregate principal amount of
the Debentures then Outstanding of any series may at any time remove
the Trustee and appoint a duly qualified successor trustee with respect
to such series by delivery to the Trustee so removed, to the successor
trustee and to the Company of the evidence provided for in Section 8.1
of the action in that regard taken by Debentureholders.
(d) Any resignation or removal of the Trustee and any
appointment of a duly qualified successor trustee pursuant to any of
the provisions of this Section shall become effective upon acceptance
of appointment by the successor trustee as provided in Section 11.7.
SECTION 11.7. Acceptance by successor Trustee.
(a) In case of the appointment hereunder of a successor
trustee with respect to all Debentures, every duly qualified successor
trustee so appointed under any of the methods herein provided shall
execute, acknowledge and deliver to its predecessor trustee and to the
Company an instrument in writing accepting such appointment hereunder
and thereupon such successor trustee, without any further act, deed or
conveyance, shall become fully vested with the rights, powers, trusts,
duties and obligations of its predecessor in the trust hereunder with
like effect as if originally named as Trustee herein. The predecessor
trustee shall, nevertheless, at the written request of the successor
trustee, pay over to the successor trustee all moneys at the time held
by it herein; and the Company and the predecessor trustee upon payment
or provision therefor of any amounts then due the predecessor trustee
pursuant to the provisions of Section 11.2, shall execute and deliver
such instruments and do such other things as may reasonably be required
for more fully and certainly vesting and confirming in the successor
trustee all such rights,
49
powers, trusts, duties and obligations. The Company shall promptly give
notice of the appointment of such successor trustee to the
Debentureholders in the manner and to the extent provided in subsection
(c) of Section 11.10.
(b) In the case of the appointment hereunder of a successor
trustee with respect to the Debentures of one or more (but not all)
series, the Company, the predecessor trustee and each successor trustee
with respect to the Debentures of such series shall execute and deliver
an indenture supplemental hereto wherein each successor trustee shall
accept such appointment and which (i) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest
in, each successor trustee all the rights, powers, trusts and duties of
the predecessor trustee with respect to the Debentures of such series
to which the appointment of such successor trustee relates, (ii) if the
predecessor trustee is not retiring with respect to all Debentures of
such series, 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 Debentures of such
series as to which the predecessor trustee is not retiring shall
continue to be vested in the predecessor trustee, and (iii) 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; and
upon the execution and delivery of such supplemental indenture the
resignation or removal of the predecessor trustee shall become
effective to the extent provided therein and each such successor
trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
predecessor trustee with respect to the Debentures of such series to
which the appointment of such successor trustee relates; but, on
request of the Company or any successor trustee, such predecessor
trustee upon payment of its charges shall duly assign, transfer and
deliver to such successor trustee all property and money held by such
predecessor trustee hereunder with respect to the Debentures of such
series to which the appointment of such successor trustee relates. Upon
request of any such successor trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts
referred to in this subsection (b) of this Section.
SECTION 11.8. Successor to Trustee by merger or consolidation, etc. Any
corporation or national banking association into which the Trustee may be
merged, or with which it may be consolidated, or to which the Trustee transfers
all or substantially all of its corporate trust assets, or any corporation or
national banking association resulting from any merger or consolidation or
conversion to which the Trustee shall be a party, shall be the successor trustee
under this Indenture without the execution or filing of any instruments or any
further act on the part of any of the parties hereto.
50
In case at the time such successor trustee shall succeed to the trusts
created by this Indenture any of the Debentures shall have been authenticated
but not delivered, any such successor trustee may adopt the certificate of
authentication of its predecessor trustee, and deliver such Debentures so
authenticated; and in case at that time any of the Debentures shall not have
been authenticated, any successor trustee may authenticate such Debentures
either in the name of any predecessor hereunder or in the name of the successor
trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Debentures or in this Indenture provided that the
certificate of authentication of the Trustee shall have; provided, however, that
the right to adopt the certificate of authentication of any predecessor trustee
or authenticate Debentures in the name of any predecessor trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 11.9. Limitations on right of Trustee as a creditor to obtain
payment of certain claims. Reference is made to Section 311 of the Trust
Indenture Act of 1939, as amended, for purposes of which the following terms
shall have the following meanings:
(i) the term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold
is made within seven days after delivery of the goods or
securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand; and
(ii) the term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship
with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or
obligation.
SECTION 11.10. Trustee to make annual report to Debentureholders -
Trustee to make other reports to Debentureholders - Debentureholders to whom
reports to be transmitted.
(a) The Trustee shall, so long as any Debentures are
Outstanding of any series with respect to which it acts as Trustee,
transmit to the Debentureholders of such series, within 60 days after
January 31 of each year beginning with the year 1997, a brief report as
of such January 31 that complies with Section 313(a) of the Trust
Indenture Act of 1939, as amended, to the extent any such report is
required pursuant to such Section.
(b) The Trustee shall, so long as any Debentures of any series
with respect to which it acts as Trustee shall be Outstanding, also
transmit to the Debentureholders of
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such series, as hereinafter provided, within the times hereinafter
specified, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state the circumstances
surrounding the making thereof) made by the Trustee, as such, since the
date of the last report transmitted pursuant to the provisions of
subsection (a) of this Section 11.10 (or if no such report has been so
transmitted, since the date of the execution of this Indenture), for
the reimbursement of which it claims or may claim a lien or charge
prior to that of the Debentures of such series, on property or funds
held or collected by the Trustee, as such, and which it has not
previously reported pursuant to this subsection (b), if such advances
remaining unpaid at any time aggregate more than 10% of the principal
amount of the Debentures of such series then Outstanding, such report
to be so transmitted within 90 days after such time.
(c) All reports required by this Section 11.10, and all other
reports or notices which are required by any other provision of this
Indenture to be transmitted in accordance with the provisions of this
Section 11.10, shall be transmitted by mail; (i) to all registered
holders of Debentures of such series, as the names and addresses of
such holders appear upon the Debenture register; (ii) to such holders
of Debentures of such series as have, within the two years preceding
such transmission, filed their names and addresses with the Trustee for
that purpose; and (iii) except in the case of reports pursuant to
subsection (b) of this Section 11.10, to all holders of Debentures of
such series whose names and addresses have been furnished to or
received by the Trustee pursuant to Section 4.6(d).
(d) The Trustee shall, at the time of the transmission to the
Debentureholders of any report or notice pursuant to this Section
11.10, file a copy thereof with the Securities and Exchange Commission.
The Company will notify the Trustee if and when the Debentures of any
series become listed on any stock exchange and the Trustee will
thereafter file a copy of any such report or notice with such stock
exchange.
SECTION 11.11. Preservation of information by Trustee - Trustee to give
certain information to Debentureholders upon application. The Trustee shall
preserve, in as current a form as is reasonably practicable, all information
furnished it pursuant to subsection (d) of Section 4.6 hereof or received by it
as Debenture registrar hereunder. The Trustee may destroy such information upon
receipt of new information updating information previously furnished.
Within five Business days after receipt by the Trustee of a written
application by any three or more Debentureholders stating that the applicants
desire to communicate with other Debentureholders with respect to their rights
under this Indenture or under the Debentures, and accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
and by reasonable proof that each such applicant has owned a Debenture or
Debentures for a period of at least six months preceding such application, the
Trustee shall, at its election, either (a) afford to such applicants access to
all information so furnished to or received by the Trustee and not destroyed
pursuant to the provisions of this Section 11.11, or (b) inform such applicants
as to the approximate number of Debentureholders according to the most recent
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information so furnished to or received by the Trustee, and as to the
approximate cost of mailing to the Debentureholders the form of proxy or other
communication, if any, specified in such application. If the Trustee shall elect
not to afford to such applicants access to such information, the Trustee shall,
upon the written request of such applicants, mail to all Debentureholders whose
names and addresses are contained in the then current information filed with the
Trustee as aforesaid copies of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and the payment, or provision for the
payment, of the reasonable expenses of such mailing, unless within five business
days after such tender, the Trustee shall mail to such applicants, and file with
the Securities and Exchange Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the
Debentureholders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Securities and
Exchange Commission, after granting opportunity for a hearing upon the
objections specified in said written statement and on notice to the Trustee,
shall enter an order refusing to sustain any of such objections, or, if, after
the entry of an order sustaining one or more of such objections, the Securities
and Exchange Commission shall find, after notice and opportunity for a hearing,
that all objections sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Debentureholders with reasonable promptness after such determination and the
renewal of the aforesaid tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
Neither the Company, the Trustee nor any person acting as Debenture
registrar or paying agent shall be liable or accountable to the Company or to
any Debentureholder by reason of the disclosure of any such information as to
the names and addresses of Debentureholders in accordance with the provisions of
this Section 11.11, regardless of the source from which such information was
derived, nor by reason of the mailing of any material pursuant to a request made
under this Section 11.11.
SECTION 11.12. Trustee may hold Debentures and otherwise deal with
Company. The Trustee, the Debenture registrar, any paying agent or any other
agent of the Company in its individual or any other capacity may buy, own, hold
and sell any of the Debentures or any other evidences of indebtedness or other
securities, whether heretofore or hereafter created or issued, of the Company or
any subsidiary or Affiliate with the same rights it would have it if were not
Trustee, Debenture registrar, paying agent or such other agent; and subject to
the provisions of this Article XI, the Trustee may engage or be interested in
any financial or other transaction with the Company or any subsidiary or
Affiliate, including without limitation, secured and unsecured loans to the
Company or any subsidiary or Affiliate; and may maintain any and all other
general banking and business relations with the Company and any subsidiary or
Affiliate with like effect and in the same manner and to the same extent as if
the Trustee were not a party to this Indenture; and no implied covenant shall be
read into this Indenture against the Trustee in respect of any such matters.
53
SECTION 11.13. Trustee may comply with any rule, regulation or order of
the Securities and Exchange Commission. The Trustee may comply in good faith
with any rule, regulation or order of the Securities and Exchange Commission
made pursuant to the terms and provisions of the Trust Indenture Act of 1939 and
shall be fully protected in so doing notwithstanding that such rule, regulation
or order may thereafter be amended or rescinded or determined by judicial or
other authority to be invalid for any reason, but nothing herein contained shall
require the Trustee to take any action or omit to take any action in accordance
with such rule, regulation or order, except as is in this Indenture otherwise
required.
SECTION 11.14. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Debentures which shall be authorized to act on behalf of the Trustee to
authenticate Debentures of such series upon exchange, registration of transfer
or partial redemption or partial conversion thereof or pursuant to Section 2.9,
and if the Trustee is required to appoint one or more Authenticating Agents with
respect to any series of Debentures, to authenticate Debentures of such series
and to take such other actions as are specified in Sections 2.4, 2.8, 2.11, 5.2
and 13.3 and Debentures 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. Whenever reference is made in this
Indenture to the authentication and delivery of Debentures 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 (except in respect to an original issue).
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 Authenticating Agent, having a combined capital and
surplus of not less than $1,000,000 and 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 11.14,
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 11.14, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section 11.14.
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 such Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 11.14, without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent.
54
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and 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 to the Company. Upon receiving such a notice or
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 11.14, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall provide
notice to the holders of the Debentures of the series as to which the
Authenticating Agent will serve as provided in Section 3.9. 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 11.14.
The Trustee agrees to pay each Authenticating Agent 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 11.2.
If an appointment with respect to one or more series is made pursuant
to this Section 11.14, the Debentures of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, as alternative
certificate of authentication in the following form:
This is one of the Debentures of the series designated therein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK
As Trustee
By
As Authenticating Agent
By
Authorized Officer
If all of the Debentures of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Debentures upon original issuance located where the Company wishes to have
Debentures of such series authenticated upon original issuance, the Trustee, if
so requested by the Company in writing (which writing need not comply with
Section 3.8 and need not be accompanied by an Opinion of Counsel), shall appoint
in accordance with this Section 11.14 an Authenticating Agent having an office
in a place designated by the Company with respect to such series of Debentures.
55
ARTICLE XII
SUPPLEMENTAL INDENTURES
SECTION 12.1. Company and Trustee may enter into supplemental indenture
for special purposes. Without the consent of any of the Debentureholders, the
Company, when authorized by resolution of its Board of Directors, and the
Trustee from time to time and at any time, subject to the conditions and
restrictions in this Indenture contained, may enter into an indenture or
indentures supplemental hereto in form satisfactory to the Trustee, which
thereafter shall form a part hereof, for any one or more of the following
purposes:
(a) to add to the covenants and agreements of the Company in
this Indenture contained, other covenants and agreements thereafter to
be observed for the benefit of the Holders of all or any series of
Debentures (and if such covenants and agreements are to be for the
benefit of less than all series of Debentures, stating that such
covenants and agreements are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
reserved to or conferred upon the Company; or
(b) to cure any ambiguity or to cure, correct or supplement
any defect or inconsistent provision contained in this Indenture or in
any supplemental indenture; or
(c) to make sure provisions in regard to matters or questions
arising under this Indenture which may be necessary or desirable, or
otherwise change this Indenture in any manner, which shall not
adversely affect the interests of the Debentureholders of any series;
or
(d) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article X and to provide for the adjustment of conversion
rights pursuant to Section 13.7; or
(e) to establish the form or terms of the Debentures of any
series as permitted by Sections 2.1 and 2.2; or
(f) to change or eliminate any of the provisions of this
Indenture, provided that, except as otherwise contemplated by Section
2.2(23), any such change or elimination shall become effective only
when there is no Debenture outstanding of any series created prior
thereto which is entitled to the benefit of such provision; or
(g) to add or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Debentures in bearer form, registrable or not registrable
as to principal, and with or without interest coupons, or to provide
for uncertificated Debentures in addition to certificated Debentures
(so long as any
56
"registration-required obligation" within the meaning of Section
163(f)(2) of the Code is in registered form for purposes of the Code);
or
(h) to amend or supplement any provision contained herein,
which was required to be contained herein in order for this Indenture
to be qualified under the Trust Indenture Act of 1939, if the Trust
Indenture Act of 1939 or regulations thereunder change what is so
required to be included in qualified indentures, in any manner not
inconsistent with what then may be required for such qualification; or
(i) to add any additional Events of Default (and if such
Events of Default are to be applicable to less than all series of
Securities, stating that such Events of Default are expressly being
included solely to be applicable to such series); or
(j) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Debentures of one or more series any
property or assets; or
(k) to add to or change any of the provisions of this
Indenture as contemplated in Section 11.7(b)
and the Company hereby covenants that it will fully perform all the requirements
of any such supplemental indenture which may be in effect from time to time.
Nothing in this Article XII contained shall affect or limit the right or
obligation of the Company to execute and deliver to the Trustee any instrument
of further assurance or other instrument which elsewhere in this Indenture it is
provided shall be delivered to the Trustee.
The Trustee shall join with the Company in the execution of any such
supplemental indenture, make any further appropriate agreements and stipulations
which may be therein contained and accept the conveyance, transfer, assignment,
mortgage or pledge of any property thereunder, but the Trustee shall not be
obligated to enter into any such supplemental indenture which adversely affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Any supplemental indenture authorized by the provisions of this Section
12.1 may be executed by the Company and the Trustee without the consent of the
holders of any of the Debentures at the time Outstanding, notwithstanding any of
the provisions of Section 12.2.
SECTION 12.2. Modification of Indenture with consent of
Debentureholders. With the consent (evidenced as provided in Section 8.1) of the
holders of not less than 66 2/3% in aggregate principal amount of the Debentures
at the time Outstanding of each series affected by such supplement, the Company,
when authorized by a resolution of its Board of Directors, and the Trustee may
from time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provision to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of
57
modifying in any manner the rights of the holders of such series of the
Debentures; provided, however, that no such supplemental indenture shall (i)
extend the time or times of payment of the principal of, premium, if any, or the
interest on, any Debenture, or reduce the principal amount of, premium, if any,
or the rate of interest on, any Debenture (and/or such other amount or amounts
as any Debentures or supplemental indentures with respect thereto may provide to
be due and payable upon declaration of acceleration of the maturity thereof
pursuant to Section 7.1) or change the currency of payment of principal of,
premium, if any, or interest on, any Debenture or reduce any amount payable on
redemption thereof or alter or impair the right to convert the same at the rate
and upon the terms provided in the Indenture or alter or impair the right to
require redemption at the option of the holder, without the consent of the
holder of each Debenture so affected, or (ii) reduce the percentage of
Debentures of any series, the vote or consent of the holders of which is
required for such modifications and alterations, without the consent of the
holders of all Debentures then Outstanding of such series under the Indenture.
Notwithstanding the foregoing, no consent of the Debentureholders shall be
necessary to permit the execution of supplemental indentures pursuant to Section
13.7.
Upon the request of the Company, accompanied by a copy of a resolution
of its Board of Directors certified by the Secretary or an Assistant Secretary
of the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Debentureholders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may, in its discretion, but shall not be obligated, to enter
into such supplemental indenture.
It shall not be necessary for the consent of the Debentureholders under
this Section 12.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
A supplemental indenture which changes or eliminates any provision of
this Indenture which has expressly been included solely for the benefit of one
or more particular series of Debentures, or which modifies the rights of the
holders of Debentures of such series with respect to such provision, shall be
deemed not to affect the rights under this Indenture of the holders of
Debentures of any other series.
SECTION 12.3. Effect of supplemental indentures. Upon the execution of
any supplemental indenture pursuant to the provisions of this Article XII, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Debentures shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
58
The Trustee, subject to the provisions of Section 11.1 may receive an
Opinion of Counsel as conclusive evidence that any such supplemental indenture
complies with the provisions of this Article XII.
SECTION 12.4. Supplemental indentures to conform to Trust Indenture
Act. Any supplemental indenture executed and delivered pursuant to the
provisions of this Article XII shall conform in all respects to the requirements
of the Trust Indenture Act of 1939, as amended, as then in effect.
SECTION 12.5. Notation on or exchange of Debentures. If an amendment,
supplement or waiver changes the terms of a Debenture of any series, the Trustee
may require the Holder of the Debenture to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Debenture about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Debenture of any series shall
issue and the Trustee shall authenticate a new Debenture of such series that
reflects the changed terms.
ARTICLE XIII
CONVERSION OF DEBENTURES
SECTION 13.1. Applicability of Article. Debentures of any series which
are convertible into Capital Stock at the option of the Debentureholder shall be
convertible in accordance with their terms and (unless otherwise specified as
contemplated by Section 2.2. for Debentures of any series) in accordance with
this Article. Each reference in this Article XIII to "a Debenture" or "the
Debentures" refers to the Debentures of the particular series that is
convertible into Capital Stock. Each reference in this Article to "Capital
Stock" into which Debentures of any series are convertible refers to the class
of Capital Stock into which the Debentures of such series are convertible in
accordance with their terms (as specified as contemplated by Section 2.2). If
more than one series of Debentures with conversion privileges are outstanding at
any time, the provisions of this Article XIII shall be applied separately to
each such series.
SECTION 13.2. Right of Debentureholders to convert Debentures. Subject
to and upon compliance with the terms of the Debentures and the provisions of
Section 5.7 and this Article XIII, at the option of the holder thereof, any
Debenture of any series of any authorized denomination, or any portion of the
principal amount thereof which is $1,000 or any integral multiple of $1,000,
may, at any time during the period specified in the Debentures of such series,
or in case such Debenture or portion thereof shall have been called for
redemption, then in respect of such Debenture or portion thereof until and
including, but not after (unless the Company shall default in payment due upon
the redemption thereof) the close of business on the date fixed for redemption
except that in the case of redemption at the option of the Debentureholder, if
specified in the terms of such Debentures, such right shall terminate upon
receipt of written notice of the
59
exercise of such option, be converted into duly authorized, validly issued,
fully paid and nonassessable shares of the class of Capital Stock, or
combination thereof, as specified in such Debenture, at the conversion rate for
each $1,000 principal amount of Debentures (such initial conversion rate
reflecting an initial conversion price specified in such Debenture) in effect on
the conversion date, or, in case an adjustment in the conversion rate has taken
place pursuant to the provisions of Section 13.5, then at the applicable
conversion rate as so adjusted, upon surrender of the Debenture or Debentures,
the principal amount of which is so to be converted, to the Company at any time
during usual business hours at the office or agency to be maintained by it in
accordance with the provisions of Section 4.2, accompanied by a written notice
of election to convert as provided in Section 13.3 and, if so required by the
Company and the Trustee, by a written instrument or instruments of transfer in
form satisfactory to the Company and the Trustee duly executed by the registered
holder or his attorney duly authorized in writing. All Debentures surrendered
for conversion shall, if surrendered to the Company or any conversion agent, be
delivered to the Trustee for cancellation and cancelled by it, or shall, if
surrendered to the Trustee, be cancelled by it, as provided in Section 2.11.
The initial conversion price or conversion rate in respect of a series
of Debentures shall be specified on the Debentures of such series. The
conversion price or conversion rate will be subject to adjustment on the terms
set forth in Section 13.5 or such other or different terms, if any, as may be
specified by Section 2.2 for Debentures of such series. Provisions of this
Indenture that apply to conversion of all of a Debenture also apply to
conversion of a portion of it.
SECTION 13.3. Issuance of shares of Capital Stock on conversion. As
promptly as practicable after the surrender, as herein provided, of any
Debenture or Debentures for conversion, the Company shall deliver or cause to be
delivered at its said office or agency to or upon the written order of the
holder of the Debenture or Debentures so surrendered a certificate or
certificates representing the number of duly authorized, validly issued, fully
paid and nonassessable shares of Capital Stock into which such Debenture or
Debentures may be converted in accordance with the terms thereof and the
provisions of this Article XIII. Prior to delivery of such certificate or
certificates, the Company shall require a written notice at its said office or
agency from the holder of the Debenture or Debentures so surrendered stating
that the holder irrevocably elects to convert such Debenture or Debentures, or,
if less than the entire principal amount thereof is to be converted, stating the
portion thereof to be converted. Such notice shall also state the name or names
(with address and social security or other taxpayer identification number) in
which said certificate or certificates are to be issued. Such conversion shall
be deemed to have been made at the time that such Debenture or Debentures shall
have been surrendered for conversion and such notice shall have been received by
the Company or the Trustee, the rights of the holder of such Debenture or
Debentures as a Debentureholder shall cease at such time, the person or persons
entitled to receive the shares of Capital Stock upon conversion of such
Debenture or Debentures shall be treated for all purposes as having become the
record holder or holders of such shares of Capital Stock at such time and such
conversion shall be at the conversion rate in effect at such time. In the case
of any Debenture of any series which is converted in part
60
only, upon such conversion, the Company shall execute and the Trustee or any
Authenticating Agent shall authenticate and deliver to the holder thereof, as
requested by such holder, a new Debenture or Debentures of such series of
authorized denominations in aggregate principal amount equal to the unconverted
portion of such Debenture.
If the last day on which a Debenture may be converted is not a Business
day in a place where a conversion agent is located, the Debenture may be
surrendered to that conversion agent on the next succeeding day that is a
Business day.
The Company will not be required to deliver certificates for shares of
Capital Stock upon conversion while its stock transfer books are closed for a
meeting of shareholders or for the payment of dividends or for any other
purpose, but certificates for shares of Capital Stock shall be delivered as soon
as the stock transfer books shall again be opened.
SECTION 13.4. No payment or adjustment for interest or dividends.
Unless otherwise specified as contemplated by Section 2.2 for Debentures of such
series, Debentures surrendered for conversion during the period from the close
of business on any regular record date (or special record date for payment of
defaulted interest) next preceding any interest payment date to the opening of
business on such interest payment date (except Debentures called for redemption
on a redemption date within such period) when surrendered for conversion must be
accompanied by payment of an amount equal to the interest thereon which the
registered holder is to receive on such interest payment date. Payment of
interest shall be made as of such interest payment date or such date, as the
case may be, to the holder of record of the Debentures as of such regular, or
special record date, as applicable. Except where Debentures surrendered for
conversion must be accompanied by payment as described above, no interest on
converted Debentures will be payable by the Company on any interest payment date
subsequent to the date of conversion. No other payment or adjustment for
interest or dividends is to be made upon conversion. Notwithstanding the
foregoing, upon conversion of any Debentures with original issue discount, the
fixed number of shares of Capital Stock into which such Debenture is convertible
delivered by the Company to the holder thereof shall be applied, first, to pay
the accrued original issue discount attributable to the period from the date of
issuance to the date of conversion of such Debenture, and, second, to pay the
balance of the principal amount of such Debenture.
SECTION 13.5. Adjustment of conversion rate. Unless otherwise specified
as contemplated by Section 2.2 for Debentures of such series, the conversion
rate for Debentures in effect at any time shall be subject to adjustment as
follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution on the class of Capital Stock into which Debentures of
such series are convertible in shares of its Capital Stock, (ii)
subdivide the outstanding shares of the class of Capital Stock into
which Debentures of such series are convertible into a greater number
of shares, (iii) combine the outstanding shares of the class of Capital
Stock into which Debentures of such series are convertible into a
smaller number of shares, or (iv) issue by reclassification of the
61
shares of the class of Capital Stock into which Debentures of such
series are convertible (including any such reclassification in
connection with a consolidation or merger in which the Company is the
continuing corporation) any shares, the conversion rate for the
Debentures of such series in effect at the time of the record date for
such dividend or distribution, or the effective date of such
subdivision, combination or reclassification, shall be proportionately
adjusted so that the holder of any Debenture of such series surrendered
for conversion after such time shall be entitled to receive the number
and kind of shares which he would have owned or have been entitled to
receive had such Debenture been converted immediately prior to such
time. Similar adjustments shall be made whenever any event listed above
shall occur.
(b) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of the class of Capital
Stock into which Debentures of such series are convertible entitling
them (for a period expiring within 45 days after such record date) to
subscribe for or purchase shares of such class of Capital Stock (or
securities convertible into shares of such class of Capital Stock ) at
a price per share (or, in the case of a right or warrant to purchase
securities convertible into such class of Capital Stock, having a
conversion price per share, after adding thereto the exercise price,
computed on the basis of the maximum number of shares of such class of
Capital Stock issuable upon conversion of such convertible securities,
per share of such class of Capital Stock, so issuable) less than the
current market price per share of such class of Capital Stock (as
defined in subsection (d) below) on the date on which such issuance was
declared or otherwise announced by the Company (the "Determination
Date"), the number of shares of such class of Capital Stock into which
each $1,000 principal amount of Debentures shall be convertible after
such record date shall be determined by multiplying the number of
shares of such class of Capital Stock into which such principal amount
of Debentures was convertible immediately prior to such record date by
a fraction, of which the numerator shall be the number of shares of
such class of Capital Stock outstanding on the Determination Date plus
the number of additional shares of such class of Capital Stock offered
for subscription or purchase (or in the case of a right or warrant to
purchase securities convertible into such class of Capital Stock, the
aggregate number of additional shares of such class of Capital Stock
into which the convertible securities so offered are initially
convertible), and of which the denominator shall be the number of
shares of such class of Capital Stock outstanding on the Determination
Date plus the number of shares of such class of Capital Stock obtained
by dividing the aggregate offering price of the total number of shares
so offered (or, in the case of a right or warrant to purchase
securities convertible into such class of Capital Stock, the aggregate
initial conversion price of the convertible securities so offered,
after adding thereto the aggregate exercise price of such rights or
warrants computed on the basis of the maximum number of shares of such
class of Capital Stock issuable upon conversion of such convertible
securities) by such current market price. Shares of such class of
Capital Stock of the Company owned by or held for the account of the
Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a
record date is
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fixed; and to the extent that shares of such class of Capital Stock are
not delivered (or securities convertible into shares of such class of
Capital Stock are not delivered) after the expiration of such rights or
warrants (or, in the case of rights or warrants to purchase securities
convertible into such class of Capital Stock once exercised, the
expiration of the conversion right of such securities) the conversion
rate shall be readjusted to the conversion rate which would then be in
effect had the adjustments made upon the issuance of such rights or
warrants (or securities convertible into shares) been made upon the
basis of delivery of only the number of shares actually delivered. In
the event that such rights or warrants are not so issued, the
conversion rate shall again be adjusted to be the conversion rate which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making
of a distribution to all holders of the class of Capital Stock into
which Debentures of such series are convertible (including any such
distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation) of evidences of its
indebtedness or assets (excluding any cash dividends paid from retained
earnings and dividends payable in Capital Stock for which adjustment is
made pursuant to subsection (a) above) or subscription rights or
warrants (excluding subscription rights or warrants to purchase the
class of Capital Stock into which Debentures of such series are
convertible), the number of shares of such class of Capital Stock into
which each $1,000 principal amount of Debentures of such series shall
be convertible after such record date shall be determined by
multiplying the number of shares of such class of Capital Stock into
which such principal amount of Debentures was convertible immediately
prior to such record date by a fraction, of which the numerator shall
be the fair market value of the assets of the Company, after deducting
therefrom all liabilities of the Company and all preferences (including
accrued but unpaid dividends) in respect of classes of Capital Stock
having a preference with respect to the assets of the Company over such
class of Capital Stock (all as determined by the Board of Directors,
whose determination shall be conclusive, and described in a certificate
signed by any Vice Chairmen of the Board, Vice President or Assistant
Vice President and Treasurer of the Company, filed with the Trustee and
each conversion agent) on such record date, and of which the
denominator shall be such fair market value after deducting therefrom
such liabilities and preferences, less the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive, and described in a statement filed with the Trustee and
each conversion agent) of the assets or evidences of indebtedness, so
distributed or of such subscription rights or warrants applicable, so
distributed. Such adjustment shall be made successively whenever such a
record date is fixed; and in the event that such distribution is not so
made, the conversion rate shall again be adjusted to the conversion
rate which would then be in effect if such record date had not been
fixed.
(d) For the purpose of any computation under subsection (b)
above and Section 13.6, the current market price per share of the
Capital Stock on any date as of
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which such price is to be computed shall mean the average of the
Closing Prices for the 30 consecutive Business days commencing 45
Business days before such date.
(e) No adjustment in the conversion rate shall be required
unless such adjustment would require a cumulative increase or decrease
of at least 1% in such rate; provided, however, that any adjustments
which by reason of this subsection (e) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment, and provided, further, that adjustments shall be required
and made in accordance with the provisions of this Article XIII (other
than this subsection (e)) not later than such time as may be required
in order to preserve the tax-free nature of a distribution for United
States income tax purposes to the holders of Debentures or the class of
Capital Stock into which such Debentures are convertible. All
calculations under this Article XIII shall be made to the nearest cent
or to the nearest one-thousandth of a share, as the case may be.
Anything in this Section 13.5 to the contrary notwithstanding, the
Company shall be entitled to make such adjustments in the conversion
rate, in addition to those required by this Section 13.5, as it in its
discretion shall determine to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights to purchase
stock or securities, or distribution of securities convertible into or
exchangeable for stock hereafter made by the Company to its
shareholders shall not be taxable for United States income tax
purposes.
(f) Whenever the conversion rate is adjusted, as herein
provided, the Company shall promptly file with the Trustee and with the
office or agency maintained by the Company for the conversion of
Debentures of such series pursuant to Section 4.2, a certificate of a
firm of independent public accountants of recognized national standing
selected by the Board of Directors (who may be the regular accountants
employed by the Company) setting forth the conversion rate after such
adjustment and setting forth a brief statement of the facts requiring
such adjustment and a computation thereof. Such certificate shall be
conclusive evidence of the correctness of such adjustment. Neither the
Trustee nor any conversion agent shall be under any duty or
responsibility with respect to any such certificate or any facts or
computations set forth therein, except to exhibit said certificate from
time to time to any Debentureholder of such series desiring to inspect
the same. The Company shall promptly cause a notice setting forth the
adjusted conversion rate to be mailed to the holders of Debentures of
such series, as their names and addresses appear upon the registration
books of the Company.
(g) In the event that at any time, as a result of shares of
any other class of Capital Stock becoming issuable in exchange or
substitution for or in lieu of shares of the class of Capital Stock
into which such Debentures are convertible or as a result of an
adjustment made pursuant to subsection (a) above, the holder of any
Debenture of such series thereafter surrendered for conversion shall
become entitled to receive any shares of the Company other than shares
of the class of Capital Stock into which the Debentures of such series
are convertible, thereafter the number of such other shares so
receivable upon
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conversion of any Debenture shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to
the provisions with respect to the class of Capital Stock into which
the Debentures of such series are convertible contained in subsections
(a) to (f), inclusive, above, and the provisions of this Article XIII
with respect to the class of Capital Stock into which the Debentures of
such series are convertible shall apply on like terms to any such other
shares.
(h) The conversion rate with respect to any Debentures with
original issue discount, the terms of which provide for convertibility,
shall not be adjusted during the term of such Original Issue Discount
Debentures for accrued original issue discount.
(i) In the event that the Debentures of any series are
convertible into more than one class of Capital Stock, the provisions
of this Section 13.5 shall apply separately to events affecting each
such class.
SECTION 13.6. No fractional shares to be issued. No fractional shares
of Capital Stock shall be issued upon conversions of Debentures. If more than
one Debenture of any series shall be surrendered for conversion at one time by
the same holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of the Debentures of such series (or specified portions thereof to the
extent permitted hereby) so surrendered. Instead of a fraction of a share of
Capital Stock which would otherwise be issuable upon conversion of any Debenture
or Debentures (or specified portions thereof), the Company shall pay a cash
adjustment in respect of such fraction of a share in an amount equal to the same
fractional interest of the current market price (as defined in Section 13.5) per
share of Capital Stock on the Business day next preceding the day of conversion.
SECTION 13.7. Preservation of conversion rights upon consolidation,
merger, sale or conveyance. In case of any consolidation of the Company with, or
merger of the Company into, any other corporation (other than a consolidation or
merger in which the Company is the continuing corporation), or in the case of
any sale or transfer of all or substantially all of the assets of the Company,
the corporation formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee, a
supplemental indenture, subject to the provisions of Article X and XII as they
relate to supplemental indentures, providing that the holder of each Debenture
then Outstanding of a series which was convertible into Capital Stock shall have
the right thereafter to convert such Debenture into the kind and amount of
shares of stock and other securities and property, including cash, receivable
upon such consolidation, merger, sale or transfer by a holder of the number of
shares of Capital Stock of the Company into which such Debentures might have
been converted immediately prior to such consolidation, merger, sale or
transfer. Such supplemental indenture shall conform to the provisions of the
Trust Indenture Act of 1939 as then in effect and shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article XIII. Neither the Trustee nor any conversion agent
shall be under any responsibility to determine the correctness
65
of any provision contained in any such supplemental indenture relating either to
the kind or amount of shares of stock or other securities or property receivable
by Debentureholders upon the conversion of their Debentures after any such
consolidation, merger, sale or transfer, or to any adjustment to be made with
respect thereto and, subject to the provisions of Section 11.1, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, an Opinion of Counsel with respect thereto. If in the
case of any such consolidation, merger, sale or transfer, the stock or other
securities and property receivable by a holder of the Debentures includes stock
or other securities and property of a corporation other than the successor or
purchasing corporation, then such supplemental indenture shall also be executed
by such other corporation and shall contain such additional provisions to
protect the interests of the holders of the Debentures as the Board of Directors
shall reasonably consider necessary. The above provisions of this Section 13.7
shall similarly apply to successive consolidations, mergers, sales or transfers.
SECTION 13.8. Notice to Debentureholders of a series prior to taking
certain types of action. With respect to the Debentures of any series, in case:
(a) the Company shall authorize the issuance to all holders of
the class of Capital Stock into which Debentures of such series are
convertible of rights or warrants to subscribe for or purchase shares
of its Capital Stock or of any other right;
(b) the Company shall authorize the distribution to all
holders of the class of Capital Stock into which Debentures of such
series are convertible of evidences of its indebtedness or assets
(except for the exclusions with respect to certain dividends set forth
in Section 13.5(c);
(c) of any subdivision, combination or reclassification of the
class of Capital Stock into which Debentures of such series are
convertible or of any consolidation or merger to which the Company is a
party and for which approval by the shareholders of the Company is
required, or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
the Company shall cause to be filed with the Trustee and at the office or agency
maintained for the purpose of conversion of Debentures of such series pursuant
to Section 4.2, and shall cause to be mailed to the holders of Debentures of
such series, at their last addresses as they shall appear upon the registration
books of the Company, at least ten days prior to the applicable record date
hereinafter specified, a notice stating (i) the date as of which the holders of
such class of Capital Stock to be entitled to receive any such rights, warrants
or distributions are to be determined, or (ii) the date on which any such
subdivision, combination, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation, winding up or other action is expected to
become effective,
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and the date as of which it is expected that holders of record of such class of
Capital Stock shall be entitled to exchange their Capital Stock of such class
for securities or other property, if any, deliverable upon such subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action. The failure to give the
notice required by this Section 13.8 or any defect therein shall not affect the
legality or validity of any distribution, right, warrant, subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action, or the vote upon any of
the foregoing. Such notice shall also be published by and at the expense of the
Company not later than the aforesaid filing date at least once in an Authorized
Newspaper.
SECTION 13.9. Covenant to reserve shares for issuance on conversion of
Debentures. The Company covenants that at all times it will reserve and keep
available out of each class of its authorized Capital Stock, free from
preemptive rights, solely for the purpose of issue upon conversion of Debentures
of any series as herein provided, such number of shares of Capital Stock of such
class as shall then be issuable upon the conversion of all Outstanding
Debentures of such series. The Company covenants that all shares of Capital
Stock which shall be so issuable shall, when issued or delivered, be duly and
validly issued shares of the class of authorized Capital Stock into which
Debentures of such series are convertible, and shall be fully paid and
nonassessable, free of all liens and charges and not subject to preemptive
rights and that, upon conversion, the appropriate capital stock accounts of the
Company will be duly credited.
SECTION 13.10. Compliance with governmental requirements. The Company
covenants that if any shares of Capital Stock required to be reserved for
purposes of conversion of Debentures hereunder require registration or listing
with or approval of any governmental authority under any Federal or State law,
pursuant to the Securities Act of 1933, as amended, or the Securities Exchange
Act, or any national or regional securities exchange on which such Capital Stock
is listed at the time of delivery of any shares of such Capital Stock, before
such shares may be issued upon conversion, the Company will use its best efforts
to cause such shares to be duly registered, listed or approved, as the case may
be.
SECTION 13.11. Payment of taxes upon certificates for shares issued
upon conversion. The issuance of certificates for shares of Capital Stock upon
the conversion of Debentures shall be made without charge to the converting
Debentureholders for any tax (including, without limitation, all documentary and
stamp taxes) in respect of the issuance and delivery of such certificates, and
such certificates shall be issued in the respective names of, or in such names
as may be directed by, the holders of the Debentures converted; provided,
however, that the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
such certificate in a name other than that of the holder of the Debenture
converted, and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
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SECTION 13.12. Trustee's duties with respect to conversion provisions.
The Trustee and any conversion agent shall not at any time be under any duty or
responsibility to any Debentureholder to determine whether any facts exist which
may require any adjustment of the conversion rate, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee nor any conversion agent shall be
accountable with respect to the registration under securities laws, listing,
validity or value (or the kind or amount) of any shares of Capital Stock, or of
any other securities or property, which may at any time be issued or delivered
upon the conversion of any Debenture; and neither the Trustee nor any conversion
agent makes any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to make any
cash payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any Debenture
for the purpose of conversion; and the Trustee, subject to the provisions of
Section 11.1, and any conversion agent shall not be responsible for any failure
of the Company to comply with any of the covenants of the Company contained in
this Article XIII.
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IN WITNESS WHEREOF, VANGUARD CELLULAR SYSTEMS, INC. has caused this
Indenture to be signed in its corporate name, and THE BANK OF NEW YORK, as
Trustee, has caused this Indenture to be signed in its corporate name, all as of
the day and year first above written.
VANGUARD CELLULAR SYSTEMS, INC.
By: /s/Haynes G. Griffin
Title: President
ATTEST:
/s/Richard C. Rowlenson
Assistant Secretary
(CORPORATE SEAL)
THE BANK OF NEW YORK, as Trustee
By: Byron Merino
Title:Assistant Treasurer
ATTEST:
/s/Dorothy J. Shaw
Assistant Treasurer
(CORPORATE SEAL)
STATE OF NEW YORK
COUNTY OF NEW YORK ss.
On this tenth day of April, before me personally came Haynes G.
Griffin, to me known, who, being by me duly sworn, did depose and say the he
resides at Greensboro, N.C., that he is the President of Vanguard Cellular
Systems, Inc., a North Carolina corporation, the corporation described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
Johnathan Cole
JONATHAN COLE
Notary Public, State of New York
(NOTARIAL SEAL)
STATE OF NEW YORK
COUNTY OF NEW YORK ss.
On this tenth day of April, before me personally came Byron Merino, to
me known, who, being by me duly sworn, did depose and say that he resides at The
Bank of New York; that he is an Assistant Treasurer of The Bank of New York, the
New York banking corporation described in and which executed the above
instrument; that he knows the seal of said New York banking corporation; that
the seal affixed to the said instrument is such seal; that it was so affixed by
authority of the Board of Directors of said New York banking corporation; and
that he signed his name thereto by like authority.
William J. Cassels
WILLIAM J. CASSELS
Notary Public, State of New York
(NOTARIAL SEAL)