Exhibit 4.4
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CABLEVISION SYSTEMS CORPORATION,
Issuer,
to
THE BANK OF NEW YORK,
Trustee
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INDENTURE
Dated as of December 1, 1997
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Senior Debt Securities
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Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of December 10, 1997
Trust Indenture
Act Section Indenture Section
Section 310 (a)(1) . . . . . . . . . . . . . . . . . 607(a)
(a)(2) . . . . . . . . . . . . . . . . . 607(a)
(b) . . . . . . . . . . . . . . . . . 608(b), 609
Section 311 (a) . . . . . . . . . . . . . . . . . 612
(b) . . . . . . . . . . . . . . . . . 612
Section 312(c) . . . . . . . . . . . . . . . . . 701
Section 313 . . . . . . . . . . . . . . . . . 702
Section 314(a) . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . 1013
(c)(1) . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . 102
Section 315(b) . . . . . . . . . . . . . . . . . 601
Section 316(a)(last
sentence) . . . . . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . 104(e)
Section 317(a)(1) . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . 108
PAGE
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . 1
Acquired Indebtedness. . . . . . . . . . . . . . . . 2
Act. . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate. . . . . . . . . . . . . . . . . . . . . . 2
Agent Members. . . . . . . . . . . . . . . . . . . . 2
Annualized Operating Cash Flow . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . 2
Average Life . . . . . . . . . . . . . . . . . . . . 3
Bank Credit Agreement. . . . . . . . . . . . . . . . 3
Bankruptcy Law . . . . . . . . . . . . . . . . . . . 3
Banks. . . . . . . . . . . . . . . . . . . . . . . . 3
Bearer Security. . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . 3
Book-Entry Security. . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . 3
Cablevision of NYC . . . . . . . . . . . . . . . . . 4
Capital Stock. . . . . . . . . . . . . . . . . . . . 4
Capitalized Lease Obligation . . . . . . . . . . . . 4
Cash Flow Ratio. . . . . . . . . . . . . . . . . . . 4
Cedel. . . . . . . . . . . . . . . . . . . . . . . . 4
Class A Common Stock . . . . . . . . . . . . . . . . 4
CNYC Agreement . . . . . . . . . . . . . . . . . . . 4
Commission . . . . . . . . . . . . . . . . . . . . . 4
Common Depositary. . . . . . . . . . . . . . . . . . 5
Common Stock . . . . . . . . . . . . . . . . . . . . 5
Company. . . . . . . . . . . . . . . . . . . . . . . 5
Company Request or Company Order . . . . . . . . . . 5
__________________
Note: This table of contents shall not, for any purpose, be deeemed to be a
part of the Indenture.
ii
PAGE
Consolidated Net Tangible Assets . . . . . . . . . . 5
Conversion Date. . . . . . . . . . . . . . . . . . . 5
Conversion Event . . . . . . . . . . . . . . . . . . 5
Corporate Trust Office . . . . . . . . . . . . . . . 5
corporation. . . . . . . . . . . . . . . . . . . . . 6
coupon . . . . . . . . . . . . . . . . . . . . . . . 6
covenant defeasance. . . . . . . . . . . . . . . . . 6
Cumulative Cash Flow Credit. . . . . . . . . . . . . 6
Cumulative Interest Expense. . . . . . . . . . . . . 6
Currency . . . . . . . . . . . . . . . . . . . . . . 6
Custodian. . . . . . . . . . . . . . . . . . . . . . 7
Debt . . . . . . . . . . . . . . . . . . . . . . . . 7
Default. . . . . . . . . . . . . . . . . . . . . . . 7
Defaulted Interest . . . . . . . . . . . . . . . . . 7
defeasance . . . . . . . . . . . . . . . . . . . . . 7
Depository . . . . . . . . . . . . . . . . . . . . . 7
Disqualified Stock . . . . . . . . . . . . . . . . . 7
Dollar or $. . . . . . . . . . . . . . . . . . . . . 7
Dollar Equivalent of the Currency Unit . . . . . . . 8
Dollar Equivalent of the Foreign Currency. . . . . . 8
Euro . . . . . . . . . . . . . . . . . . . . . . . . 8
Election Date. . . . . . . . . . . . . . . . . . . . 8
Euroclear. . . . . . . . . . . . . . . . . . . . . . 8
Event of Default . . . . . . . . . . . . . . . . . . 8
Exchange Act . . . . . . . . . . . . . . . . . . . . 8
Exchange Date. . . . . . . . . . . . . . . . . . . . 8
Exchange Rate Agent. . . . . . . . . . . . . . . . . 8
Exchange Rate Officers' Certificate. . . . . . . . . 8
Extension Notice . . . . . . . . . . . . . . . . . . 8
Extension Period . . . . . . . . . . . . . . . . . . 8
Final Maturity . . . . . . . . . . . . . . . . . . . 8
Foreign Currency . . . . . . . . . . . . . . . . . . 9
generally accepted accounting principles or GAAP . . 9
Global Securities. . . . . . . . . . . . . . . . . . 9
Government Obligations . . . . . . . . . . . . . . . 9
guarantee. . . . . . . . . . . . . . . . . . . . . . 9
Holder . . . . . . . . . . . . . . . . . . . . . . . 10
incorporated provision . . . . . . . . . . . . . . . 10
Indebtedness . . . . . . . . . . . . . . . . . . . . 10
Indenture. . . . . . . . . . . . . . . . . . . . . . 10
Indexed Security . . . . . . . . . . . . . . . . . . 11
iii
PAGE
interest . . . . . . . . . . . . . . . . . . . . . . 11
Interest Payment Date. . . . . . . . . . . . . . . . 11
Interest Swap Obligations. . . . . . . . . . . . . . 11
Investment . . . . . . . . . . . . . . . . . . . . . 11
Lease. . . . . . . . . . . . . . . . . . . . . . . . 11
Lien . . . . . . . . . . . . . . . . . . . . . . . . 11
Mandatorily Redeemable Preferred Stock . . . . . . . 12
mandatory sinking fund payment . . . . . . . . . . . 12
Market Exchange Rate . . . . . . . . . . . . . . . . 12
Maturity . . . . . . . . . . . . . . . . . . . . . . 13
Notice of Default. . . . . . . . . . . . . . . . . . 13
Officers' Certificate. . . . . . . . . . . . . . . . 13
Operating Cash Flow. . . . . . . . . . . . . . . . . 13
Opinion of Counsel . . . . . . . . . . . . . . . . . 13
Option to Elect Repayment. . . . . . . . . . . . . . 13
Optional Reset Date. . . . . . . . . . . . . . . . . 13
optional sinking fund payment. . . . . . . . . . . . 13
Original Issue Discount Security . . . . . . . . . . 14
Original Stated Maturity . . . . . . . . . . . . . . 14
Outstanding. . . . . . . . . . . . . . . . . . . . . 14
Paying Agent . . . . . . . . . . . . . . . . . . . . 15
Permitted Liens. . . . . . . . . . . . . . . . . . . 15
Person . . . . . . . . . . . . . . . . . . . . . . . 17
Place of Payment . . . . . . . . . . . . . . . . . . 17
Predecessor Security . . . . . . . . . . . . . . . . 18
Preferred Stock. . . . . . . . . . . . . . . . . . . 18
Receivables and Related Assets . . . . . . . . . . . 18
Redemption Date. . . . . . . . . . . . . . . . . . . 18
Redemption Price . . . . . . . . . . . . . . . . . . 18
redesignation of a Restricted Subsidiary . . . . . . 18
Refinancing Indebtedness . . . . . . . . . . . . . . 18
Registered Security. . . . . . . . . . . . . . . . . 18
Regular Record Date. . . . . . . . . . . . . . . . . 19
Repayment Date . . . . . . . . . . . . . . . . . . . 19
Repayment Price. . . . . . . . . . . . . . . . . . . 19
Responsible Officer. . . . . . . . . . . . . . . . . 19
Restricted Payment . . . . . . . . . . . . . . . . . 19
Restricted Subsidiary. . . . . . . . . . . . . . . . 20
Securities . . . . . . . . . . . . . . . . . . . . . 21
Securitization Subsidiary. . . . . . . . . . . . . . 21
Security Register and Security Registrar . . . . . . 21
iv
PAGE
Senior Debt. . . . . . . . . . . . . . . . . . . . . 21
Senior Indebtedness. . . . . . . . . . . . . . . . . 21
Series C Preferred Stock . . . . . . . . . . . . . . 22
Special Record Date. . . . . . . . . . . . . . . . . 22
Stated Maturity. . . . . . . . . . . . . . . . . . . 22
Stock Payment. . . . . . . . . . . . . . . . . . . . 22
Subsequent Interest Period . . . . . . . . . . . . . 22
subsidiary . . . . . . . . . . . . . . . . . . . . . 22
Subsidiary . . . . . . . . . . . . . . . . . . . . . 23
successor. . . . . . . . . . . . . . . . . . . . . . 23
Trust Indenture Act. . . . . . . . . . . . . . . . . 23
Trustee. . . . . . . . . . . . . . . . . . . . . . . 23
United States. . . . . . . . . . . . . . . . . . . . 23
United States person . . . . . . . . . . . . . . . . 23
Unrestricted Subsidiary. . . . . . . . . . . . . . . 23
Valuation Date . . . . . . . . . . . . . . . . . . . 23
Vice President . . . . . . . . . . . . . . . . . . . 23
Voting Stock . . . . . . . . . . . . . . . . . . . . 23
Yield to Maturity. . . . . . . . . . . . . . . . . . 24
SECTION 102. Compliance Certificates and Opinions. . . . 24
SECTION 103. Form of Documents Delivered to Trustee. . . 24
SECTION 104. Acts of Holders . . . . . . . . . . . . . . 25
SECTION 105. Notices, etc. to Trustee and Company. . . . 27
SECTION 106. Notice to Holders; Waiver . . . . . . . . . 27
SECTION 107. Conflict of Any Provision of Indenture with
Trust Indenture Act . . . . . . . . . . . . 28
SECTION 108. Effect of Headings and Table of Contents. . 29
SECTION 109. Successors and Assigns. . . . . . . . . . . 29
SECTION 110. Separability Clause . . . . . . . . . . . . 29
SECTION 111. Benefits of Indenture . . . . . . . . . . . 29
SECTION 112. Governing Law . . . . . . . . . . . . . . . 29
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . 29
SECTION 114. No Recourse Against Others. . . . . . . . . 30
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . 30
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . 31
SECTION 203. Securities Issuable in Global Form. . . . . 31
SECTION 204. Form of Legend for Book-Entry Securities. . 32
v
PAGE
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . 33
SECTION 302. Denominations . . . . . . . . . . . . . . . 37
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . 37
SECTION 304. Book-Entry Securities . . . . . . . . . . . 39
SECTION 305. Temporary Securities. . . . . . . . . . . . 41
SECTION 306. Registration, Registration of Transfer
and Exchange. . . . . . . . . . . . . . . . 44
SECTION 307. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . 47
SECTION 308. Payment of Interest; Interest Rights
Preserved; Optional Interest Reset . . . . 48
SECTION 309. Optional Extension of Stated Maturity . . . 51
SECTION 310. Persons Deemed Owners . . . . . . . . . . . 52
SECTION 311. Cancellation. . . . . . . . . . . . . . . . 53
SECTION 312. Computation of Interest . . . . . . . . . . 53
SECTION 313. Currency and Manner of Payments in
Respect of Securities . . . . . . . . . . . 54
SECTION 314. Appointment and Resignation of Successor
Exchange Rate Agent . . . . . . . . . . . . 56
SECTION 315. CUSIP Numbers . . . . . . . . . . . . . . . 57
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . 58
SECTION 402. Application of Trust Money. . . . . . . . . 59
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . 60
SECTION 502. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . 62
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee. . . . . . . . . 63
SECTION 504. Trustee May File Proofs of Claim. . . . . . 64
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities. . . . . . . . . . 64
SECTION 506. Application of Money Collected. . . . . . . 65
SECTION 507. Limitation on Suits . . . . . . . . . . . . 65
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest . . 66
SECTION 509. Restoration of Rights and Remedies. . . . . 67
vi
PAGE
SECTION 510. Rights and Remedies Cumulative. . . . . . . 67
SECTION 511. Delay or Omission Not Waiver. . . . . . . . 67
SECTION 512. Control by Holders. . . . . . . . . . . . . 67
SECTION 513. Waiver of Past Defaults . . . . . . . . . . 68
SECTION 514. Undertaking for Costs . . . . . . . . . . . 68
SECTION 515. Waiver of Stay or Extension Laws. . . . . . 69
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. . . . . . . . . . . . . 69
SECTION 602. Certain Rights of Trustee . . . . . . . . . 69
SECTION 603. Trustee Not Responsible for Recitals
or Issuance of Securities . . . . . . . . . 71
SECTION 604. May Hold Securities . . . . . . . . . . . . 71
SECTION 605. Money Held in Trust . . . . . . . . . . . . 71
SECTION 606. Compensation and Reimbursement. . . . . . . 72
SECTION 607. Conflicting Interests . . . . . . . . . . . 72
SECTION 608. Corporate Trustee Required; Eligibility;
Conflicting Interests . . . . . . . . . . . 73
SECTION 609. Resignation and Removal; Appointment
of Successor 73
SECTION 610. Acceptance of Appointment by Successor. . . 75
SECTION 611. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . 76
SECTION 612. Appointment of Authenticating Agent . . . . 77
SECTION 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . 78
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . 79
SECTION 702. Reports by Trustee. . . . . . . . . . . . . 79
SECTION 703. Reports by Company. . . . . . . . . . . . . 79
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . 80
SECTION 802. Successor Substituted . . . . . . . . . . . 81
ARTICLE NINE
vii
PAGE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Holders. . . . . . . . . . . . . . . . . 81
SECTION 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . 83
SECTION 903. Execution of Supplemental Indentures. . . . 84
SECTION 904. Effect of Supplemental Indentures . . . . . 84
SECTION 905. Conformity with Trust Indenture Act . . . . 84
SECTION 906. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . . 84
SECTION 907. Notice of Supplemental Indentures . . . . . 85
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any,
and Interest . . . . . . . . . . . . . . . 85
SECTION 1002. Maintenance of Office or Agency. . . . . . 85
SECTION 1003. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . 87
SECTION 1004. Corporate Existence. . . . . . . . . . . . 89
SECTION 1005. Payment of Taxes and Other Claims. . . . . 89
SECTION 1006. Maintenance of Properties. . . . . . . . . 89
SECTION 1007. Limitation on Indebtedness . . . . . . . . 90
SECTION 1008. Limitation on Liens. . . . . . . . . . . . 90
SECTION 1009. Limitation on Restricted Payments. . . . . 90
SECTION 1010. Limitation on Investments in
Unrestricted Subsidiaries and Affiliates . 91
SECTION 1011. Transactions with Affiliates . . . . . . . 92
SECTION 1012. Provision of Financial Statements. . . . . 92
SECTION 1013. Statement as to Compliance . . . . . . . . 93
SECTION 1014. Waiver of Certain Covenants. . . . . . . . 93
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . 93
SECTION 1102. Election to Redeem; Notice to Trustee. . . 93
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . 94
SECTION 1104. Notice of Redemption . . . . . . . . . . . 94
SECTION 1105. Deposit of Redemption Price. . . . . . . . 95
SECTION 1106. Securities Payable on Redemption Date. . . 96
SECTION 1107. Securities Redeemed in Part. . . . . . . . 97
viii
PAGE
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . 97
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities. . . . . . . . . . . . . . 97
SECTION 1203. Redemption of Securities for Sinking Fund. 98
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . . . . 99
SECTION 1302. Repayment of Securities. . . . . . . . . . 99
SECTION 1303. Exercise of Option . . . . . . . . . . . .100
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable . . . . . . . . . .100
SECTION 1305. Securities Repaid in Part. . . . . . . . .101
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or
Covenant Defeasance. . . . . . . . . . . .101
SECTION 1402. Defeasance and Discharge . . . . . . . . .102
SECTION 1403. Covenant Defeasance. . . . . . . . . . . .102
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . .103
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . .105
SECTION 1406. Reinstatement. . . . . . . . . . . . . . .106
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.106
SECTION 1502. Call, Notice and Place of Meetings . . . .107
SECTION 1503. Persons Entitled to Vote at Meetings . . .107
SECTION 1504. Quorum; Action . . . . . . . . . . . . . .107
SECTION 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings. . . . . . . .109
SECTION 1506. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . .110
ix
PAGE
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . .112
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . .112
EXHIBIT A -- List of Restricted Subsidiaries
EXHIBIT B-1 -- Form of Certificate to Be Given by Person Entitled to
Receive Bearer Security or to Obtain Interest Payable Prior
to the Exchange Date
EXHIBIT B-2 -- Form of Certificate to Be Given by Euroclear and Cedel S.A.
in Connection with the Exchange of a Portion of a Temporary
Global Security or to Obtain Interest Payable Prior to the
Exchange Date
INDENTURE, dated as of December 1, 1997 between Cablevision
Systems Corporation, a Delaware corporation (herein called the "Company"), and
The Bank of New York, a New York banking corporation, as trustee (herein called
the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its senior debt
securities (herein called the "Securities"), to be issued in one or more series
as in this Indenture provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
2
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
were generally accepted in the United States as of August 15, 1997; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, are defined in
that Article.
"Acquired Indebtedness" means Indebtedness of a Person
(a) existing at the time such Person is merged with or into the Company or a
Subsidiary or becomes a Subsidiary or (b) assumed in connection with the
acquisition of assets from such Person.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent Members" shall have the meaning set forth in Section 315.
"Annualized Operating Cash Flow" means, for any period of three
complete consecutive calendar months, an amount equal to Operating Cash Flow for
such period multiplied by four.
"Authenticating Agent" means any Person appointed by the Trustee
to act on behalf of the Trustee pursuant to Section 611 to authenticate
Securities.
"Authorized Newspaper" means a newspaper, in the English language
or in an official language of the country of publication, customarily published
on each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in each place in connection with which the
term is used or in the financial community of each such place. Where successive
publications are required to be made in Authorized
3
Newspapers, the successive publications may be made in the same or in different
newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Average Life" means, at any date of determination with respect
to any debt security, the quotient obtained by dividing (i) the sum of the
products of (a) the number of years from such date of determination to the dates
of each successive scheduled principal payment of such debt security and (b) the
amount of such principal payment by (ii) the sum of all such principal payments.
"Bank Credit Agreement" means the Fifth Amended and Restated
Credit Agreement, dated as of September 5, 1996, among the Company, the
Restricted Subsidiaries party thereto, the banks party thereto, Toronto Dominion
(Texas), Inc. as agent for the Banks, and Bank of Montreal, Chicago Branch, The
Bank of New York, The Bank of Nova Scotia, The Canadian Imperial Bank of
Commerce and NationsBank of Texas, N.A., as co-agents for the Banks, and the
Credit Agreement, dated as of June 15, 1994, by and among Cablevision MFR, Inc.,
Cablevision of Riverview, Inc. and Cablevision of Monmouth, Inc., the Lenders
from time to time party thereto and NationsBank of Texas, N.A., as
Administrative Lender, both agreements as in effect on the date hereof and as
such agreements may be amended or replaced from time to time.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or state law for the relief of debtors.
"Banks" means the lenders from time to time who are parties to
the Bank Credit Agreement.
"Bearer Security" means any Security except a Registered
Security.
"Board of Directors" means the board of directors of the Company
or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" has the meaning specified in Section 304.
"Business Day", when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that
4
Place of Payment or other location are authorized or obligated by law,
regulation or executive order to close.
"Cablevision of NYC" shall mean, collectively, Cablevision
Systems of New York City Corporation, Cablevision of New York City - Phase I
L.P., Cablevision of New York City - Phase II L.P. and Cablevision of New York
City - Phase III L.P.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's capital stock whether now outstanding or issued after the date of
this Indenture, including, without limitation, all Common Stock, Preferred Stock
and Disqualified Stock.
"Capitalized Lease Obligation" means any obligation of a Person
to pay rent or other amounts under a lease with respect to any property (whether
real, personal or mixed) acquired or leased by such Person and used in its
business that is required to be accounted for as a liability on the balance
sheet of such Person in accordance with generally accepted accounting
principles, and the amount of such Capitalized Lease Obligation shall be the
amount so required to be accounted for as a liability.
"Cash Flow Ratio" means, as at any date, the ratio of (i) the sum
of the aggregate outstanding principal amount of all Indebtedness of the Company
and the Restricted Subsidiaries determined on a consolidated basis but excluding
all Interest Swap Obligations entered into by the Company or any Restricted
Subsidiary and one of the Banks outstanding on such date plus (but without
duplication of Indebtedness supported by Letters of Credit) the aggregate
undrawn face amount of all Letters of Credit outstanding on such date to (ii)
Annualized Operating Cash Flow determined as at the last day of the most recent
month for which financial information is available.
"Cedel" means Cedel Bank, S.A., or its successor.
"Class A Common Stock" means the Class A Common Stock, par value
$.01 per share, of the Company.
"CNYC Agreement" means the Purchase and Reorganization Agreement,
dated as of December 20, 1991, between the Company and Xxxxxxx X. Xxxxx, as
amended as of March 28, 1992 and as further amended from time to time.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
5
"Common Depositary" has the meaning specified in Section 305.
"Common Stock" means, with respect to any Person, any and all
shares, interests and participations (however designated and whether voting or
non-voting) in such Person's common equity, whether now outstanding or issued
after the date of this Indenture, and includes, without limitation, all series
and classes of such common stock.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person. To the extent necessary to comply
with the requirements of the provisions of TIA Sections 310 through 317 as they
are applicable to the Company, the term "Company" shall include any other
obligor with respect to the Securities for the purposes of complying with such
provisions.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company (i) by its Chairman, Chief Executive
Officer, a Vice Chairman, its President or a Vice President and (ii) by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary and
delivered to the Trustee; PROVIDED, HOWEVER, that such written request or order
may be signed by any two of the officers or directors listed in clause (i) above
in lieu of being signed by one of such officers or directors listed in such
clause (i) and one of the officers listed in clause (ii) above.
"Consolidated Net Tangible Assets" of any Person means, as of any
date, (a) all amounts that would be shown as assets on a consolidated balance
sheet of such Person and its Restricted Subsidiaries prepared in accordance with
GAAP, less (b) the amount thereof constituting goodwill and other tangible
assets as calculated in accordance with GAAP.
"Conversion Date" has the meaning specified in Section 313(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such Currency and by
a central bank or other public institution of or within the international
banking community for the settlement of transactions other than as a result of
the European Economic and Monetary Union and the adoption or phase in of the
Euro pursuant thereto, or (ii) any currency unit (or composite
currency) including the Euro for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office on the date of execution of this Indenture is located
at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
6
"corporation" includes corporations, associations, partnerships,
limited liability companies, companies and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"covenant defeasance" has the meaning specified in Section 1403
hereof.
"Cumulative Cash Flow Credit" means the sum of
(a) cumulative Operating Cash Flow during the period commencing
on July 1, 1988 and ending on the last day of the most recent month
preceding the date of the proposed Restricted Payment for which financial
information is available or, if cumulative Operating Cash Flow for such
period is negative, minus the amount by which cumulative Operating Cash
Flow is less than zero, plus
(b) the aggregate net proceeds received by the Company from the
issuance or sale (other than to a Restricted Subsidiary) of its Capital
Stock (other than Disqualified Stock) on or after January 1, 1992, plus
(c) the aggregate net proceeds received by the Company from the
issuance or sale (other than to a Restricted Subsidiary) of its Capital
Stock (other than Disqualified Stock) on or after January 1, 1992, upon the
conversion of, or exchange for, Indebtedness of the Company or any
Restricted Subsidiary or from the exercise of any options, warrants or
other rights to acquire Capital Stock of the Company.
For purposes of this definition, the net proceeds in property other than cash
received by the Company as contemplated by clauses (b) and (c) above shall be
valued at the fair market value of such property (as determined by the Board of
Directors, whose good faith determination shall be conclusive) at the date of
receipt by the Company.
"Cumulative Interest Expense" means, for the period commencing on
July 1, 1988 and ending on the last day of the most recent month preceding the
proposed Restricted Payment for which financial information is available, the
aggregate of the interest expense of the Company and its Restricted Subsidiaries
for such period, determined on a consolidated basis in accordance with GAAP,
including interest expense attributable to Capitalized Lease Obligations.
"Currency" means any currency or currencies, composite currency
or currency unit or currency units, including, without limitation, the Euro,
issued by the government of one or more countries or by any recognized
confederation or association of such governments.
7
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar officer under any Bankruptcy Law.
"Debt" with respect to any Person means, without duplication, any
liability, whether or not contingent, (i) in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereto), but excluding
reimbursement obligations under any surety bond, (ii) representing the balance
deferred and unpaid of the purchase price of any property (including pursuant to
Capitalized Lease Obligations), except any such balance that constitutes a trade
payable, (iii) under Interest Swap Agreements (as defined in the Bank Credit
Agreement) entered into pursuant to the Bank Credit Agreement, (iv) under any
other agreement related to the fixing of interest rates on any Indebtedness,
such as an interest swap, cap or collar agreement (if and to the extent any of
the foregoing liabilities would appear as a liability upon a balance sheet of
such Person prepared on a consolidated basis in accordance with GAAP)
or (v) guarantees of items of other Persons which would be included within this
definition for such other Persons (whether or not the guarantee would appear on
such balance sheet). "Debt" does not include (i) Disqualified Stock, (ii) any
liability for federal, state or other taxes owed or owing by such Person or
(iii) any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including guarantees thereof or instruments
evidencing such liabilities).
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 308
hereof.
"defeasance" has the meaning specified in Section 1402 hereof.
"Depository" has the meaning specified in Section 304.
"Disqualified Stock" means, with respect to any series of
Securities, any Capital Stock of the Company or any Restricted Subsidiary which,
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity date of such Securities.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
8
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 313(g).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 313(f).
"Euro" means the single currency for those member states of the
European Union that satisfy certain criteria set forth in the Treaty of Rome, as
amended by the Treaty on European Union.
"Election Date" has the meaning specified in Section 313(h).
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or
within any series, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank, designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officers' Certificate" means a tested telex or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with
Section 302 in the relevant Currency), payable with respect to a Security of any
series on the basis of such Market Exchange Rate, sent (in the case of a telex)
or signed (in the case of a certificate) by the Chairman, Chief Executive
Officer, a Vice Chairman, the President, a Vice President or the Treasurer of
the Company.
"Extension Notice" and "Extension Period" shall have the meanings
specified in Section 309.
"Final Maturity" has the meaning specified in Section 309.
9
"Foreign Currency" means any Currency other than Currency of the
United States.
"generally accepted accounting principles" or "GAAP" means
generally accepted accounting principles in the United States, consistently
applied, which were in effect as of August 15, 1997.
"Global Securities" means one or more Securities evidencing all
or part of the Securities to be issued as Book-Entry Securities, issued to the
Depository in accordance with Section 301 and bearing the legend prescribed in
Section 204.
"Government Obligations" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, securities which
are (i) direct obligations of the government which issued the Currency in which
the Securities of a particular series are payable or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the government which issued the Currency in which the Securities of such series
are payable, the payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit obligations of such
government payable in such Currency and are not callable or redeemable at the
option of the issuer thereof and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt; PROVIDED that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest or principal of
the Government Obligation evidenced by such depository receipt.
"guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation or (ii) an agreement, direct or indirect, contingent or
otherwise, providing assurance of the payment or performance (or payment of
damages in the event of non-performance) of any part or all of such obligation,
including, without limiting the foregoing, the payment of amounts drawn down by
letters of credit. Notwithstanding anything herein to the contrary, a guarantee
shall not include any agreement solely because such agreement creates a Lien on
the assets of any Person. The amount of a guarantee shall be deemed to be the
maximum amount of the obligation guaranteed for which the guarantor could be
held liable under such guarantee.
10
"Holder" means, in the case of a Registered Security, the Person
in whose name a Security is registered in the Security Register and, in the case
of a Bearer Security, the bearer thereof and, when used with respect to any
coupon, shall mean the bearer thereof.
"incorporated provision" has the meaning specified in Section
107.
"Indebtedness" with respect to any Person, means the Debt of such
Person; PROVIDED, HOWEVER, that, with respect to the Company, the "Minimum
Payment" or the "Preferred Payment" as defined in and pursuant to the CNYC
Agreement, payable by a Subsidiary and guaranteed by the Company as a result of
the acquisition of Cablevision of NYC, shall not be deemed to be "Indebtedness"
so long as the Company and such Subsidiary are permitted to make such payment in
one or more classes of the Company's Capital Stock (other than Disqualified
Stock) pursuant to the terms of the CNYC Agreement and the Company and the
Restricted Subsidiaries are prohibited from making such payment in cash, debt
securities, Disqualified Stock or any combination thereof pursuant to the terms
of any mortgage, indenture, credit agreement or other instrument that secures or
evidences Indebtedness for money borrowed or guaranteed by the Company or a
Restricted Subsidiary in an aggregate amount of $10,000,000 or more; PROVIDED
that, for purposes of the definition of "Indebtedness" (including the term
"Debt" to the extent incorporated in such definition) and for purposes of the
definition of Event of Default, the term "guarantee" shall not be interpreted to
extend to a guarantee under which recourse is limited to the Capital Stock of an
entity that is not a Restricted Subsidiary.
"Indenture" means this instrument as originally executed
(including all exhibits and schedules hereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, and shall include the terms
of particular series of Securities established as contemplated by Section 301;
PROVIDED, HOWEVER, that, if at any time more than one Person is acting as
Trustee under this instrument, "Indenture" shall mean, with respect to any one
or more series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
11
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity at the rate prescribed in such Original Issue Discount
Security.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Securities.
"Interest Swap Obligations" means, with respect to any Person,
the obligations of such Person pursuant to any arrangement with any other Person
whereby, directly or indirectly, such Person is entitled to receive from time to
time periodic payments calculated by applying either a floating or a fixed rate
of interest on a stated notional amount in exchange for periodic payments made
by such Person calculated by applying a fixed or a floating rate of interest on
the same notional amount.
"Investment" means any advance, loan, account receivable (other
than an account receivable arising in the ordinary course of business) or other
extension of credit (excluding, however, accrued and unpaid interest in respect
of any advance, loan or other extension of credit) or any capital contribution
to (by means of transfers of property to others, or payments for property or
services for the account or use of others, or otherwise), any purchase or
ownership of any stocks, bonds, notes, debentures or other securities
(including, without limitation, any interests in any partnership, joint venture
or joint adventure) of, or any bank accounts with or guarantee of any
Indebtedness or other obligations of, any Unrestricted Subsidiary or Affiliate
that is not a Subsidiary; PROVIDED that (i) the term "Investment" shall not
include any transaction that would otherwise constitute an Investment of the
Company or a Subsidiary to the extent that the consideration provided by the
Company or such Subsidiary in connection therewith shall consist of Capital
Stock of the Company (other than Disqualified Stock) and (ii) the term
"guarantee" shall not be interpreted to extend to a guarantee under which
recourse is limited to the Capital Stock of an entity that is not a Restricted
Subsidiary.
"Lease" means any capital lease, operating lease, equipment
lease, real property lease or other lease.
"Lien" means any lien, security interest, charge or encumbrance
of any kind (including any conditional sale or other title retention agreement,
any lease in the nature of a security interest and any agreement to give any
security interest). A Person shall be deemed to own subject to a Lien any
property which such Person has acquired or holds subject to the
12
interest of a vendor or lessor under a conditional sale agreement, capital lease
or other title retention agreement.
"Mandatorily Redeemable Preferred Stock" means the Company's
Series H Redeemable Exchangeable Preferred Stock, Series M Redeemable
Exchangeable Preferred Stock and any other series of Capital Stock of the
Company that is Disqualified Stock outstanding at the time of issuance of the
applicable series of Securities and any series of Preferred Stock of the Company
issued in exchange for, or the proceeds of which are used to repurchase, redeem,
defease or otherwise acquire, all or any portion of the Series H Redeemable
Exchangeable Preferred Stock, Series M Redeemable Exchangeable Preferred Stock
or any other Mandatorily Redeemable Preferred Stock.
"mandatory sinking fund payment" shall have the meaning specified
in Section 1201.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency, the noon (New York City time) buying rate for such
Foreign Currency for cable transfers quoted in New York City as certified for
customs purposes by the Federal Reserve Bank of New York and (iii) for any
conversion of one Foreign Currency into Dollars or another Foreign Currency, the
spot rate at noon local time in the relevant market at which, in accordance with
normal banking procedures, the Dollars or Foreign Currency into which conversion
is being made could be purchased with the Foreign Currency from which conversion
is being made from major banks located in either New York City, London or any
other principal market for Dollars or such purchased Foreign Currency, in each
case determined by the Exchange Rate Agent. Unless otherwise specified with
respect to any Securities pursuant to Section 301, in the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or another principal
market for the Currency in question, or such other quotations as the Exchange
Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange
Rate Agent, if there is more than one market for dealing in any Currency by
reason of foreign exchange regulations or otherwise, the market to be used in
respect of such Currency shall be that upon which a non-resident issuer of
securities designated in such Currency would purchase such Currency in order to
make payments in respect of such securities.
13
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided whether at the Stated Maturity, by declaration of
acceleration, notice of redemption, notice of option to elect repayment or
otherwise.
"Notice of Default" shall have the meaning specified in Section
501.
"Officers' Certificate" means a certificate signed by (i) the
Chairman, Chief Executive Officer, a Vice Chairman, the President, a Vice
President or the Treasurer of the Company and (ii) the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee; PROVIDED, HOWEVER, that
such certificate may be signed by two of the officers or directors listed in
clause (i) above in lieu of being signed by one of such officers or directors
listed in such clause (i) and one of the officers listed in clause (ii) above.
"Operating Cash Flow" means, for any period, the sum of the
following for the Company and the Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with generally accepted
accounting principles (except for the amortization of deferred installation
income which shall be excluded from the calculation of Operating Cash Flow for
all purposes of this Indenture): (i) aggregate operating revenues MINUS
(ii) aggregate operating expenses (including technical, programming, sales,
selling, general and administrative expenses and salaries and other
compensation, net of amounts allocated to Affiliates, paid to any general
partner, director, officer or employee of the Company or any Restricted
Subsidiary, but excluding interest, depreciation and amortization and the amount
of non-cash compensation in respect of the Company's employee incentive stock
programs for such period (not to exceed in the aggregate for any calendar year
7% of the Operating Cash Flow for the previous calendar year) and, to the extent
otherwise included in operating expenses, any losses resulting from a writeoff
or writedown of Investments by the Company or any Restricted Subsidiary in
Affiliates). For purposes of determining Operating Cash Flow, there shall be
excluded all management fees until actually paid to the Company or any
Restricted Subsidiary in cash.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee. Each
such opinion shall include the statements provided for in TIA Section 314(e) to
the extent applicable.
"Option to Elect Repayment" shall have the meaning specified in
Section 1303.
"Optional Reset Date" shall have the meaning specified in Section
308.
"optional sinking fund payment" shall have the meaning specified
in Section 1201.
14
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Original Stated Maturity" shall have the meaning specified in
Section 309.
"Outstanding" when used with respect to Securities means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment,
purchase, redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities and any coupons appertaining thereto;
PROVIDED that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Fourteen; and
(iv) Securities paid pursuant to Section 307 or Securities in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that, in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
direction, consent or waiver hereunder or are present at a meeting of Holders
for quorum purposes, and for the purpose of making the calculations required by
TIA Section 313, (i) the principal amount of an Original Issue Discount Security
that may be counted in making such determination or calculation and that shall
be deemed to be Outstanding for such purpose shall be equal to the amount of
principal thereof that would be (or shall have been declared to be) due and
payable, at the time of such determination, upon a declaration of acceleration
of the maturity thereof pursuant to Section 502, (ii) the principal amount of
any Security denominated in a
15
Foreign Currency that may be counted in making such determination or calculation
and that shall be deemed Outstanding for such purpose shall be equal to the
Dollar equivalent, determined as of the date such Security is originally issued
by the Company as set forth in an Exchange Rate Officers' Certificate delivered
to the Trustee, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent as of such date of original issuance of
the amount determined as provided in clause (i) above) of such Security,
(iii) the principal amount of any Indexed Security that may be counted in making
such determination or calculation and that shall be deemed outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security at
original issuance, unless otherwise provided with respect to such Security
pursuant to Section 301, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such calculation or
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or premium, if
any) or interest, if any, on any Securities on behalf of the Company.
"Permitted Liens" means the following types of Liens:
(a) Liens existing on the applicable issuance date of Securities
of a series;
(b) Liens on shares of the Capital Stock of an entity that is
not a Restricted Subsidiary, which Liens solely secure a guarantee by the
Company or a Restricted Subsidiary, or both, of Indebtedness of such
entity;
(c) Liens on Receivables and Related Assets (and proceeds
thereof) securing only Indebtedness otherwise permitted to be incurred by a
Securitization Subsidiary;
(d) Liens on shares of the Capital Stock of a Subsidiary
securing Indebtedness under the Bank Credit Agreement or any renewal or
replacement of the Bank Credit Agreement;
(e) Liens granted in favor of the Company or any Restricted
Subsidiary;
16
(f) Liens securing the Securities;
(g) Liens securing Acquired Indebtedness created prior to (and
not in connection with or in contemplation of) the incurrence of such
Indebtedness by the Company or a Restricted Subsidiary; PROVIDED that such
Lien does not extend to any property or assets of the Company or any
Restricted Subsidiary other than the assets acquired in connection with the
incurrence of such Acquired Indebtedness;
(h) Liens securing Interest Swap Obligations or "margin stock",
as defined in Regulations G and U of the Board of Governors of the Federal
Reserve System;
(i) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like Liens arising in
the ordinary course of business of the Company or any Restricted Subsidiary
and with respect to amounts not yet delinquent or being contested in good
faith by appropriate proceedings;
(j) Liens for taxes, assessments, government charges or claims
not yet due or that are being contested in good faith by appropriate
proceedings;
(k) zoning restrictions, easements, rights-of-way, restrictions
and other similar charges or encumbrances or minor defects in title not
interfering in any material respect with the business of the Company or any
of its Restricted Subsidiaries;
(l) Liens arising by reason of any judgment, decree or order of
any court, arbitral tribunal or similar entity so long as any appropriate
legal proceedings that may have been initiated for the review of such
judgment, decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have
expired;
(m) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security or similar legislation;
(n) Liens securing the performance of bids, tenders, Leases,
contracts, franchises, public or statutory obligations, surety, stay or
appeal bonds, or other similar obligations arising in the ordinary course
of business;
(o) Leases under which the Company or any Restricted Subsidiary
is the lessee or the lessor;
17
(p) purchase money mortgages or other purchase money liens
(including without limitation any Capitalized Lease Obligations) upon any
fixed or capital assets acquired after the applicable issuance date of
Securities of a series, or purchase money mortgages (including without
limitation Capitalized Lease Obligations) on any such assets hereafter
acquired or existing at the time of acquisition of such assets, whether or
not assumed, so long as (i) such mortgage or lien does not extend to or
cover any other asset of the Company or any Restricted Subsidiary and
(ii) such mortgage or lien secures the obligation to pay the purchase price
of such asset, interest thereon and other charges incurred in connection
therewith (or the obligation under such Capitalized Lease Obligation) only;
(q) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(r) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual, or warranty requirements
of the Company or any of its Restricted Subsidiaries, including rights of
offset and set-off;
(s) Liens to secure other Indebtedness; PROVIDED, HOWEVER, that
the principal amount of any Indebtedness secured by such Liens, together
with the principal amount of any Indebtedness refinancing any Indebtedness
incurred under this clause (s) as permitted by clause (t) below (and
successive refinancings thereof), may not exceed 15% of the Company's
Consolidated Net Tangible Assets as of the last day of the Company's most
recently completed fiscal year for which financial information is
available; and
(t) any extension, renewal or replacement, in whole or in part,
of any Lien described in the foregoing clauses (a) through (s); PROVIDED
that any such extension, renewal or replacement shall be no more
restrictive in any material respect than the Lien so extended, renewed or
replaced and shall not extend to any additional property or assets.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" means, when used with respect to the
Securities of or within any series, the place or places where the principal of
(and premium, if any) and interest, if any, on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
18
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 307 in exchange for a
mutilated Security or in lieu of a destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon appertains shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security or the Security to which the mutilated, destroyed, lost or stolen
coupon appertains, as the case may be.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference stock, whether now outstanding or issued
after the date of this Indenture, and includes, without limitation, all classes
and series of preferred or preference stock.
"Receivables and Related Assets" means (i) accounts receivable,
instruments, chattel paper, obligations, general intangibles, equipment and
other similar assets, including interests in merchandise or goods, the sale or
lease of which gives rise to the foregoing, related contractual rights,
guarantees, insurance proceeds, collections and other related assets, (ii)
equipment, (iii) inventory and (iv) proceeds of all of the foregoing.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"redesignation of a Restricted Subsidiary" has the meaning
specified in Section 1010 hereof.
"Refinancing Indebtedness" means, with respect to any series of
Securities, Indebtedness of the Company incurred to redeem, repurchase, defease
or otherwise acquire or retire for value other Indebtedness that is subordinate
in right of payment to such Securities, so long as any such new Indebtedness
(i) is made subordinate to such Securities at least to the same extent as the
Indebtedness being refinanced and (ii) does not have (x) an Average Life less
than the Average Life of the Indebtedness being refinanced, (y) a final
scheduled maturity earlier than the final scheduled maturity of the Indebtedness
being refinanced, or (z) permit redemption at the option of the holder earlier
than the earlier of (A) the final scheduled maturity of the Indebtedness being
refinanced or (B) any date of redemption at the option of the holder of the
Indebtedness being refinanced.
"Registered Security" means any Security registered in the
Security Register.
19
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to
be repaid at the option of the Holder, the date fixed for such repayment
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security
to be repaid at the option of the Holder, the price at which it is to be repaid
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means any vice-president, any assistant secretary, any assistant treasurer, any
trust officer or assistant trust officer, the controller and any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above-designated officers or assigned
by the Trustee to administer corporate trust matters at its Corporate Trust
Office and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Payment" means, with respect to any series of
Securities,
(a) any Stock Payment by the Company or a Restricted Subsidiary;
(b) any direct or indirect payment to redeem, purchase, defease
or otherwise acquire or retire for value, or permit any Restricted
Subsidiary to redeem, purchase, defease or otherwise acquire or retire for
value, prior to any scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any Indebtedness of the Company that is subordinate
in right of payment to such Securities; PROVIDED, HOWEVER, that any direct
or indirect payment to redeem, purchase, defease or otherwise acquire or
retire for value, or permit any Restricted Subsidiary to redeem, purchase,
defease or otherwise acquire or retire for value, prior to any scheduled
maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness that is subordinate in right of payment to such Securities
shall not be a Restricted Payment if either (i) after giving effect
thereto, the ratio of the Senior Indebtedness of the Company and the
Restricted Subsidiaries to Annualized Operating Cash Flow determined as of
the last day of the most recent month for which financial information is
available is less than or equal to 5 to 1 or (ii) such subordinate
Indebtedness is redeemed, purchased, defeased or otherwise acquired or
retired in exchange for, or out of (x) the proceeds of a sale (within one
year before or 180 days after such redemption, purchase, defeasance,
acquisition or retirement) of, Refinancing Indebtedness, or Capital Stock
of the Company or warrants, rights or options to
20
acquire Capital Stock of the Company or (y) any source of funds other than
the incurrence of Indebtedness;
(c) any direct or indirect payment to redeem, purchase, defease
or otherwise acquire or retire for value any Disqualified Stock at its
mandatory redemption date or other maturity date if and to the extent that
Indebtedness is incurred to finance such redemption, purchase, defeasance
or other acquisition or retirement; PROVIDED, HOWEVER, that the redemption,
purchase, defeasance or other acquisition or retirement of Mandatorily
Redeemable Preferred Stock at its mandatory redemption or other maturity
date shall not be a Restricted Payment if and to the extent any
Indebtedness incurred to finance all or a portion of the purchase or
redemption price does not have a final scheduled maturity date, or permit
redemption at the option of the holder thereof, earlier than the final
scheduled maturity of such of Securities.
Notwithstanding the foregoing, Restricted Payments shall not include (x)
payments by any Restricted Subsidiary to the Company or any other Restricted
Subsidiary or (y) any Investment or designation of a Restricted Subsidiary as an
Unrestricted Subsidiary permitted under Section 1010.
"Restricted Subsidiary" means any Subsidiary, whether existing on
the date hereof or created subsequent hereto, designated from time to time by
the Company as a "Restricted Subsidiary" and the initial Restricted Subsidiaries
designated by the Company are set forth on Exhibit A; PROVIDED, HOWEVER, that no
Subsidiary that is not a Securitization Subsidiary can be or remain so
designated unless (i) at least 67% of each of the total equity interest and the
voting control of such Subsidiary is owned, directly or indirectly, by the
Company or another Restricted Subsidiary and (ii) such Subsidiary is not
restricted, pursuant to the terms of any loan agreement, note, indenture or
other evidence of indebtedness, from (a) paying dividends or making any
distribution on such Subsidiary's Capital Stock or other equity securities or
paying any Indebtedness owed to the Company or to any Restricted Subsidiary, (b)
making any loans or advances to the Company or any Restricted Subsidiary or (c)
transferring any of its properties or assets to the Company or any Restricted
Subsidiary (it being understood that a financial covenant any of the components
of which are directly impacted by the taking of the action (E.G., the payment of
a dividend) itself (such as a minimum net worth test) would be deemed to be a
restriction on the foregoing actions, while a financial covenant none of the
components of which are directly impacted by the taking of the action (E.G., the
payment of a dividend) itself (such as a debt to cash flow test) would not be
deemed to be a restriction on the foregoing actions); and PROVIDED FURTHER that
the Company may, from time to time, redesignate any Restricted Subsidiary as an
Unrestricted Subsidiary in accordance with Section 1010.
21
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; PROVIDED, HOWEVER, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Securitization Subsidiary" means a Restricted Subsidiary that is
established for the limited purpose of acquiring and financing Receivables and
Related Assets and engaging in activities ancillary thereto; PROVIDED that (i)
no portion of the Indebtedness of a Securitization Subsidiary is guaranteed by
or is recourse to the Company or any other Restricted Subsidiary (other than
recourse for customary representations, warranties, covenants and indemnities,
none of which shall relate to the collectibility of the Receivables and Related
Assets) and (ii) none of the Company or any other Restricted Subsidiary has any
obligation to maintain or preserve such Securitization Subsidiary's financial
condition.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means, with respect to any Person, all principal of
(premium, if any) and interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to such
Person whether or not a claim for post filing interest is allowed in such
proceedings) with respect to all Indebtedness of such Person; PROVIDED that
Senior Debt shall not include (u) any Indebtedness of such Person that, by its
terms or the terms of the instrument creating or evidencing such Indebtedness,
is expressly subordinate in right of payment to the Senior Debt Securities of a
Series, (ii) any guarantee of Indebtedness of any subsidiary of such Person if
recourse against such guarantee is limited to the capital stock or other equity
interests of such subsidiary, (iii) any obligation of such Person to any
subsidiary of such Person or, in the case of a Restricted Subsidiary, to the
Company or any other subsidiary of the Company or (iv) any Indebtedness of such
Person (and any accrued and unpaid interest in respect thereof) which is
subordinate or junior in any respect to any other Indebtedness or other
obligation of such Person.
"Senior Indebtedness" means, with respect to the Securities of
any series except as otherwise provided pursuant to Section 301 of this
Indenture, the principal, premium, if any, interest (including post-petition
interest in any proceeding under any Bankruptcy Law, whether or not such
interest is an allowed claim enforceable against the debtor in a proceeding
under such Bankruptcy Law), penalties, fees and other liabilities payable with
respect to (i) all Debt of the Company, other than the Company's 9-1/4% Senior
Subordinated Notes due 2005, 9-7/8% Senior Subordinated Notes due 2006, 9-7/8%
Senior Subordinated Debentures due 2013, 10-1/2% Senior Subordinated Debentures
due
22
2016 and 9-7/8% Senior Subordinated Debentures due 2023, whether outstanding on
the date of this Indenture or thereafter created, incurred or assumed, which is
(x) for money borrowed, (y) evidenced by a note or similar instrument given in
connection with the acquisition of any businesses, properties or assets of any
kind or (z) in respect of any Capitalized Lease Obligations and (ii) all
renewals, extensions, refundings, increases or refinancings thereof, unless, in
the case of (i) or (ii) above, the instrument under which the Debt is created,
incurred, assumed or guaranteed expressly provides that such Debt is subordinate
in right of payment to Senior Debt of the Company. Notwithstanding anything to
the contrary contained herein, "Senior Indebtedness" shall mean and include all
amounts of Senior Indebtedness that are such by virtue of clause (i) or (ii) of
the foregoing definition that are repaid by the Company and subsequently
recovered from the holder of such Senior Indebtedness under any applicable
Bankruptcy Laws or otherwise (other than by reason of some wrongful conduct on
the part of the holders of such Debt).
"Series C Preferred Stock" has the meaning specified in Section
1009.
"Special Record Date" means a date fixed by the Trustee for the
payment of any Defaulted Interest pursuant to Section 308.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 309.
"Stock Payment" means, with respect to any Person, the payment or
declaration of any dividend, either in cash or in property (except dividends
payable in Common Stock or common shares of Capital Stock of such Person), or
the making by such Person of any other distribution, on account of any shares of
any class of its Capital Stock, now or hereafter outstanding, or the redemption,
purchase, retirement or other acquisition for value by such Person, directly or
indirectly, of any shares of any class of its Capital Stock, now or hereafter
outstanding, other than the redemption, purchase, defeasance or other
acquisition or retirement for value of any Disqualified Stock at its mandatory
redemption date or other maturity date.
"Subsequent Interest Period" shall have the meaning specified in
Section 308.
"subsidiary" means, as to a particular parent entity at any time,
any entity of which more than 50% of the outstanding Voting Stock or other
equity interest entitled ordinarily to vote in the election of the directors or
other governing body (however designated) of such entity is at the time
beneficially owned or controlled directly or indirectly
23
by such parent corporation, by one or more such entities or by such parent
corporation and one or more such entities.
"Subsidiary" means any subsidiary of the Company.
"successor" shall have the meaning set forth in Section 801
hereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended, and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
PROVIDED, HOWEVER, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to
any Securities pursuant to Xxxxxxx 000, xxx Xxxxxx Xxxxxx xx Xxxxxxx (including
the states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source.
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
"Valuation Date" has the meaning specified in Section 313(c).
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means any Capital Stock having voting power under
ordinary circumstances to vote in the election of a majority of the board of
directors of a corporation (irrespective of whether or not at the time stock of
any other class or classes shall have or might have voting power by reason of
the happening of any contingency).
24
"Yield to Maturity" means the yield to maturity, computed at the
time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion (other than the certificates
required by Section 1013) with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with
25
respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions
of Article Fifteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to TIA Section 315) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1506.
26
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or
(2) such Bearer Security is produced to the Trustee by some other Person, or
(3) such Bearer Security is surrendered in exchange for a Registered Security,
or (4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner that the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of such Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), any such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Securities then Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Securities then Outstanding shall be computed as of such record date; PROVIDED
that no such request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
27
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security or the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, suffered or omitted to be done by the Trustee, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, the Agents of the Banks or the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or delivered, in writing, to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Trustee Administration; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or delivered, in writing, to the
Company addressed to it c/o Cablevision Systems Corporation, Xxx Xxxxx
Xxxxxxxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders
of Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided. Any notice mailed to
a Holder in the aforesaid manner shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impractical to
mail notice of any event to Holders
28
of Registered Securities when such notice is required to be given pursuant to
any provision of this Indenture, then any manner of giving such notice as shall
be satisfactory to the Trustee shall be deemed to be sufficient giving of such
notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given to Holders of Bearer Securities if published
in an Authorized Newspaper in The City of New York and in such other city or
cities as may be specified in such Securities on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and not
later than the latest date, prescribed for the giving of such notice. Any such
notice shall be deemed to have been given on the date of the first such
publication.
In case, by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause,
it shall be impracticable to publish any notice to Holders of Bearer Securities
as provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to give
notice by publication to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency of such notice
with respect to other Holders of Bearer Securities or the sufficiency of any
notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by TIA Sections 310 to 318,
inclusive, or conflicts with any provision (an "incorporated provision")
required by or deemed to be included in this Indenture by operation of such TIA
Sections, such imposed duties or incorporated provision shall control. If any
provision of this Indenture modifies or excludes any provision of the
29
Trust Indenture Act that may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or excluded, as the
case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Security or
coupon shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or coupons,
express or implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar, any holders of
Senior Indebtedness and their successors hereunder and the Holders of Securities
or coupons, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities and coupons shall be governed
by and construed in accordance with the laws of the State of New York, without
regard to conflicts of laws principles. This Indenture is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
sinking fund payment date or Stated Maturity or Maturity of any Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of any Security or coupon other than a provision
in the Securities of any series which specifically states that such provision
shall apply in lieu of this Section), payment of principal (or
30
premium, if any) or interest, if any, need not be made at such Place of Payment
on such date, but may be made on the next succeeding Business Day at such Place
of Payment with the same force and effect as if made on the Interest Payment
Date or Redemption Date or sinking fund payment date, or at the Stated Maturity
or Maturity; PROVIDED that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date, sinking fund payment date,
Stated Maturity or Maturity, as the case may be.
SECTION 114. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting any of
the Securities waives and releases all such liability.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons. If
the forms of Securities or coupons of any series are established by action taken
pursuant to a Board Resolution, 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 303 for the authentication and delivery of such
Securities or coupons. Any portion of the text of any Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of the
Security.
Unless otherwise specified as contemplated by Section 301,
Securities in bearer form shall have interest coupons attached.
31
The Trustee's certificate of authentication on all Securities
shall be in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed,
lithographed or engraved on steel-engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Securities, as evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 612, the Trustee's certificate of
authentication shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
-------------------------------
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global form,
as specified as contemplated by Section 301, then, any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 303 or Section 305. Subject
to the provisions of Section 303 and, if applicable, Section 305, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in the
applicable
32
Company Order. If a Company Order pursuant to Section 303 or Section 305 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to
any Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 308, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 310 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent Global Security (i) in the
case of a permanent Global Security in registered form, the Holder of such
permanent Global Security in registered form, or (ii) in the case of a permanent
Global Security in bearer form, Euroclear or Cedel.
SECTION 204. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.
Any Global Security authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS
SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX
00
XXXXXX, XXX XXXX, XXX XXXX 10041) TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND SUCH CERTIFICATE ISSUED
IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO.,
OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in one or more Board Resolutions or pursuant to authority granted
by one or more Board Resolutions and, subject to Section 303, set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (17) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title and ranking of the Securities of the series (which
shall distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 305, 306, 307, 906, 1107 or
1305);
(3) the Person to whom any interest on the Securities of any
series is payable if other than the Person in whose name the Securities of
such series are registered on the Regular Record Date;
34
(4) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of the Securities of
the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue, or the method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which such date or
dates shall be determined, and the basis upon which interest shall be
calculated if other than on the basis of a 360-day year of twelve 30-day
months;
(6) the place or places, if any, other than or in addition to
the Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall be
payable, where any Registered Securities of the series may be surrendered
for registration of transfer, where Securities of the series may be
surrendered for exchange, where Securities of the series that are
convertible or exchangeable may be surrendered for conversion or exchange,
as applicable and, if different than the location specified in Section 106,
the place or places where notices or demands to or upon the Company in
respect of the Securities of the series and this Indenture may be served;
(7) the period or periods within which, the events upon the
occurrence of which, the price or prices at which, the Currency in which,
and other terms and conditions upon which Securities of the series may be
redeemed or purchased, in whole or in part, at the option of the Company,
if the Company is to have that option;
(8) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which, the price or prices at which, the Currency in which, and
other terms and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any Securities
of the series shall be issuable;
(10) whether the amount of payments of principal of (or premium,
if any) or interest, if any, on the Securities of the series may be
determined with reference to an
35
index, formula or other method (which index, formula or method may be
based, without limitation, on one or more Currencies, commodities, equity
indices or other indices), and the manner in which such amounts shall be
determined;
(11) if other than Dollars, the Currency in which payment of the
principal of (or premium, if any) or interest, if any, on the Securities of
the series shall be payable or in which the Securities of the series shall
be denominated and the particular provisions applicable thereto in
accordance with, in addition to or in lieu of any of the provisions of
Section 313 and, if other than New York law, the applicable law for
determination of Currency issues or Currency unit issues;
(12) whether the principal of (or premium, if any) or interest,
if any, on the Securities of the series are to be payable, at the election
of the Company or a Holder thereof, in a Currency other than that in which
such Securities are denominated or stated to be payable, the period or
periods within which (including the Election Date), and the terms and
conditions upon which, such election may be made, and the time and manner
of determining the exchange rate between the Currency in which such
Securities are denominated or stated to be payable and the Currency in
which such Securities are to be so payable, in each case in accordance
with, in addition to or in lieu of any of the provisions of Section 313;
(13) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(14) if the principal amount of the Securities of the series
payable at the Maturity thereof is not determinable as of any date prior to
such Maturity, the amount which shall be deemed to be the Outstanding
principal amount of the Securities of such series;
(15) any change in the applicability of Sections 1402 and/or 1403
to the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen that
shall be applicable to the Securities of the series;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of Bearer
Securities, whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the series
are to be issuable in permanent global form with or without coupons and, if
so, whether beneficial owners of interests in any such permanent
36
Global Security may exchange such interests for Securities of such series
and of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than in
the manner provided in Section 306, whether Registered Securities of the
series may be exchanged for Bearer Securities of the series (if permitted
by applicable laws and regulations), whether Bearer Securities of the
series may be exchanged for Registered Securities of such series, and the
circumstances under which and the place or places where any such exchanges
may be made and if Securities of the series are to be issuable in global
form, the identity of any initial depository therefor;
(17) any change in the applicability of the Events of Default
with respect to Securities of the series, whether or not such Events of
Default are consistent with the Events of Default set forth herein;
(18) any deletions from, modifications of or additions to the
covenants (including any deletions from, modifications of or additions to
Section 1014) of the Company with respect to Securities of the series,
whether or not such covenants are consistent with the covenants set forth
herein;
(19) if the Securities of the series are to be secured;
(20) the specific terms of the depository arrangement with
respect to any portion of a series of Securities to be represented by a
Global Security pursuant to Section 304; and
(21) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which
terms shall not be inconsistent with the requirements of the Trust
Indenture Act or the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to
any Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. Not all Securities of any one series need be
issued at the same time, and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
37
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. With
respect to Securities of any series denominated in Dollars, in the absence of
any such provisions, the Securities of such series, other than Securities issued
in global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by any one of the following: its Chairman,
Chief Executive Officer, its President or one of its Vice Presidents, and
attested by one of its Vice Presidents or its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities or
coupons may be manual or facsimile.
Securities or coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities or
coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
together with any coupon appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and make available for delivery such Securities;
PROVIDED, HOWEVER, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and PROVIDED FURTHER that, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate in the form
set forth in Exhibit B-1 to this Indenture, dated no earlier than 15 days prior
to the earlier of the date on which such Bearer Security is delivered and the
date on which any temporary Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 305, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary Global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent Global Security. Except as permitted by Section 307,
the Trustee shall not authenticate and make available for delivery any Bearer
Security unless all
38
appurtenant coupons for interest then matured have been detached and cancelled.
If not all the Securities of any series are to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining terms of particular
Securities of such series such as interest rate, stated maturity, date of
issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) that the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in accordance
with this Indenture, authenticated and made available for delivery by the
Trustee in accordance with this Indenture and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel,
will constitute the legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights, to general equitable principles and to such other qualifications as
such counsel shall conclude do not materially affect the rights of Holders
of such Securities and any coupons;
(d) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities, any coupons and of the
supplemental indentures, if any, have been complied with and that
authentication and delivery of such Securities and any coupons and the
execution and delivery of the supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such
Securities and any coupons, and has duly taken all necessary corporate
action with respect to such issuance; and
(f) that the issuance of such Securities and any coupons will
not contravene the articles of incorporation or by-laws of the Company or
result in any violation of
39
any of the terms or provisions of any law or regulation or of any
indenture, mortgage or other agreement known to such Counsel by which the
Company is bound.
Notwithstanding the provisions of Section 301 and of the
preceding two paragraphs, if not all the Securities of any series are to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to the preceding two paragraphs
prior to or at the time of issuance of each Security, but such documents shall
be delivered prior to or at the time of issuance of the first Security of such
series.
The Trustee shall not be required to authenticate and make
available for delivery any such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 311 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. BOOK-ENTRY SECURITIES.
(a) The Securities of a series may be issuable in whole or in
part in the form of one or more Global Securities ("Book-Entry Securities")
deposited with, or on behalf of, a Depository (the "Depository"). In the case
of Book-Entry Securities, one or more Global Securities will be issued in a
denomination or aggregate denomination equal to the portion of the aggregate
principal amount of Outstanding Securities of the series to be represented by
such Global Security or Global Securities. Unless otherwise provided as
contemplated by Section 301, the additional provisions set forth in this Section
304 shall apply to Book-Entry Securities.
40
(b) Book-Entry Securities will be deposited with, or on behalf
of, the Depository, and registered in the name of the Depository's nominee, for
credit to the respective accounts of institutions that have accounts with the
Depository or its nominee ("Participants"); PROVIDED that Book-Entry Securities
purchased by persons outside the United States may be credited to or through
accounts maintained at the Depository by or on behalf of Euroclear or Cedel.
The accounts to be credited will be designated by the underwriters or agents of
such Securities or, if such Securities are offered and sold directly by the
Company, by the Company. Ownership of beneficial interests in Book-Entry
Securities will be limited to Persons that may hold interests through
Participants and will be shown on records maintained by the Depository or its
nominee for such Book-Entry Security.
Participants shall have no rights under this Indenture or any
indenture supplemental hereto with respect to any Book-Entry Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Book-Entry Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the
Book-Entry Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing in this Indenture or any such indenture supplemental 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
the Depository or impair, as between the Depository and its Participants, the
operation of customary practices governing the exercise of the rights of a
Holder of any Security.
(c) Transfers of Book-Entry Securities shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in Book-Entry Securities
may be transferred or exchanged for Bearer Securities only if (i) the Depository
advises the Trustee in writing that it is no longer willing or able to discharge
properly its responsibilities with respect to such Book-Entry Security and it is
unable to locate a qualified successor, (ii) the Company, at its option, elects
to terminate the book-entry system by executing and delivering to the Trustee
and the Depository a notice to such effect, or (iii) there shall have occurred
and be continuing a Default or Event of Default with respect to the Securities
represented by such Book-Entry Security.
(d) In connection with any transfer or exchange of a portion of
the beneficial interest in any Book-Entry Security to beneficial owners pursuant
to paragraph (c) above, the Security Registrar shall (if one or more Bearer
Securities are to be issued) reflect on its books and records the date and a
decrease in the principal amount of the Book-Entry Security in an amount equal
to the principal amount of the beneficial interest in the Book-Entry Security to
be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Bearer Securities of like tenor and
principal amount of authorized denominations.
41
(e) In connection with the transfer of Book-Entry Securities as
an entirety to beneficial owners pursuant to paragraph (c) above, the Book-Entry
Securities shall be deemed to be surrendered to the Trustee for cancellation and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depository in exchange for its
beneficial interest in the Book-Entry Securities, an equal aggregate principal
amount of Bearer Securities of like tenor of authorized denominations.
(f) The Holder of any Book-Entry Security may grant proxies and
otherwise authorize any person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under the applicable Indenture or the Securities.
SECTION 305. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are typewritten, printed, lithographed,
engraved or otherwise produced by any combination of these methods, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form or, if authorized, in
bearer form with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form that
are not issued as Book-Entry Securities as provided in Section 304 (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; PROVIDED, HOWEVER, that no Bearer Security shall be
delivered in exchange for a temporary Registered Security; and PROVIDED FURTHER
that a Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303. Until
so exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
42
If temporary Securities of any series are issued in global form
(other than Securities issued as Book-Entry Securities as provided in Section
304), any such temporary Global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or common depositary
(the "Common Depositary"), for the benefit of Euroclear and Cedel, for credit to
the respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
Global Security that is not issued as a Book-Entry Security as provided in
Section 304 (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. On or after
the Exchange Date such temporary Global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary Global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; PROVIDED,
HOWEVER, that, unless otherwise specified in such temporary Global Security,
upon such presentation by the Common Depositary, such temporary Global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary Global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by Cedel as to the portion of such temporary Global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit B-2 to this Indenture (or in such other form as may be established
pursuant to Section 301); and PROVIDED FURTHER that Bearer Securities shall be
delivered in exchange for a portion of a temporary Global Security only in
compliance with the requirements of Section 303.
Unless otherwise specified in such temporary Global Security that
is not issued as a Book-Entry Security as provided in Section 304, the interest
of a beneficial owner of Securities of a series in a temporary Global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
Cedel, as the case may be, to request such exchange on his behalf and delivers
to Euroclear or Cedel, as the case may be, a certificate in the form set forth
in Exhibit B-1 to this Indenture (or in such other form as may be established
pursuant to Section 301), dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and Cedel, the Trustee, any
43
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary Global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
Global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like in the event that
such Person does not take delivery of such definitive Securities in person at
the offices of Euroclear or Cedel. Bearer Securities in bearer form to be
delivered in exchange for any portion of a temporary Global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series, including temporary Global Securities (whether or not
issued as Book-Entry Securities as provided in Section 304), shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by
Section 301, interest payable on a temporary Global Security (other than
Securities issued as Book-Entry Securities as provided in Section 304) on an
Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and Cedel on such
Interest Payment Date upon delivery by Euroclear and Cedel to the Trustee of a
certificate or certificates in the form set forth in Exhibit B-2 to this
Indenture (or in such other form as may be established pursuant to Section 301),
for credit without further interest thereon on or after such Interest Payment
Date to the respective accounts of the Persons who are the beneficial owners of
such temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or Cedel, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth in Exhibit B-1 to this Indenture (or in such
other form as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section and of the third paragraph of Section 303 of this
Indenture and the interests of the Persons who are the beneficial owners of the
temporary Global Security with respect to which such certification was made will
be exchanged for definitive Securities of the same series and of like tenor on
the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary Global Security will be made unless and until such interest in such
temporary Global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and Cedel and not
paid as herein provided shall be returned to the Trustee immediately prior to
the expiration of two years after such Interest Payment Date in order to be
repaid to the Company in accordance with Section 1003.
44
SECTION 306. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register for each series of Securities (the registers
maintained in such office of the Trustee and in any other office or agency
designated pursuant to Section 1002 being herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Trustee is hereby
initially appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Except as otherwise described in this Article Three, upon
surrender for registration of transfer of any Registered Security of any series
at the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series, in each case, of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Registered Securities which the Holder making the exchange is
entitled to receive. Unless otherwise specified with respect to any series of
Securities as contemplated by Section 301 or Section 304, Bearer Securities may
not be issued in exchange for Registered Securities.
If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denomination and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
any such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any
45
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; PROVIDED, HOWEVER, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive, and the
Trustee shall cancel the Bearer Securities so transferred. In the case of an
exchange of Bearer Securities for an interest in a Book-Entry Security, the
Security Registrar shall reflect on the Register the date and an increase in the
principal amount of the Bearer Securities to be transferred, and the Trustee
shall cancel the Bearer Securities so transferred.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent Global Security (other than
Securities issued as Book-Entry Securities as provided in Section 304) shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent Global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent Global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent Global Security, executed by the Company. On or
after the earliest date on which such interests may be so exchanged, such
permanent Global Security shall be surrendered by the Common Depositary or such
other depositary as shall be specified in the Company Order with respect thereto
to the Trustee, as the Company's agent for such purpose, to be exchanged, in
whole or from time to time in part, for definitive Securities without charge,
and the Trustee shall authenticate and deliver, in exchange for each portion of
such permanent Global Security, an equal aggregate principal
46
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such permanent Global Security to be
exchanged which, unless the Securities of the series are not issuable both as
Bearer Securities and as Registered Securities, as specified as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner
thereof; PROVIDED, HOWEVER, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
to be redeemed and ending on the relevant Redemption Date if the Security for
which exchange is requested may be among those selected for redemption; and
PROVIDED FURTHER that no Bearer Security delivered in exchange for a portion of
a permanent Global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in exchange
for any portion of a permanent Global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent Global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to pay all documentary, stamp, similar issue or transfer taxes or
other governmental charges that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 305, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the selection for redemption
of Securities of that series under
47
Section 1103 or 1203 and ending at the close of business on (A) if Securities of
the series are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; PROVIDED that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 307. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them and any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to the surrendered Security, or, in case
any such mutilated Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security,
with coupons corresponding to the coupons, if any, appertaining to the
surrendered Security, pay such Security or coupon.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security for which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in
case any such mutilated, destroyed, lost or stolen Security or coupon has become
or is about to
48
become due and payable, the Company in its discretion may, instead of issuing a
new Security, with coupons corresponding to the coupons, if any, appertaining to
such mutilated, destroyed, lost or stolen Security or to the Security to which
such mutilated, destroyed, lost or stolen coupon appertains, pay such Security
or coupon; PROVIDED, HOWEVER, that payment of principal of (and premium, if any)
and interest, if any, on Bearer Securities shall, except as otherwise provided
in Section 1002, be payable only at an office or agency located outside the
United States and, unless otherwise specified as contemplated by Section 301,
any interest on Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charges that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen
Security or in exchange for a Security to which a mutilated, destroyed, lost or
stolen coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security and its coupons, if any, or the mutilated, destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section 307 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 308. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED;
OPTIONAL INTEREST RESET.
(a) Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest, if any, on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; PROVIDED, HOWEVER,
that each installment of interest, if any, on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 310,
to the address of such Person as it appears on the Security Register or
(ii) transfer to an account located in the United States maintained by the
payee.
49
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account located
outside the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301, every
permanent Global Security (other than Book-Entry Securities issued as provided
in Section 304) will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euroclear and Cedel with respect to that
portion of such permanent Global Security held for its account by the Common
Depositary, for the purpose of permitting each of Euroclear and Cedel to credit
the interest, if any, received by it in respect of such permanent Global
Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such defaulted
interest and, if applicable, interest on such defaulted interest (to the extent
lawful) at the rate specified in the Securities of such series (such defaulted
interest and, if applicable, interest thereon herein collectively called
"Defaulted Interest") may be paid by the Company, at its election in each case,
as provided in Subsection (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 313(b), 313(d) and 313(e)) equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Subsection provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to
50
be given in the manner provided in Section 106, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
given, such Defaulted Interest shall be paid to the Persons in whose name
the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following
Subsection (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) The provisions of this Section 308(b) may be made applicable
to any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise at least 50 but not more
than 60 days prior to an Optional Reset Date for such Note, which such notice
shall contain such information as may be required by the Trustee to transmit the
Reset Notice as hereinafter defined). Not later than 40 days prior to each
Optional Reset Date, the Trustee shall transmit, in the manner provided for in
Section 106, to the Holder of any such Security a notice (the "Reset Notice")
indicating whether the Company has elected to reset the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread or spread
multiplier, if applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset Date
or if there is no such next Optional Reset Date, to the Stated Maturity Date of
such Security (each such period a "Subsequent Interest Period"), including the
date or dates on which or the period or periods during which and the price or
prices at which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher
51
interest rate (or such higher spread or spread multiplier, if applicable) to the
Holder of such Security. Such notice shall be irrevocable. All Securities with
respect to which the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) is reset on an Optional Reset Date,
and with respect to which the Holders of such Securities have not tendered such
Securities for repayment (or have validly revoked any such tender) pursuant to
the next succeeding paragraph, will bear such higher interest rate (or such
higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in
Article Thirteen for repayment at the option of Holders except that the period
for delivery or notification to the Trustee shall be at least 25 but not more
than 35 days prior to such Optional Reset Date and except that, if the Holder
has tendered any Security for repayment pursuant to the Reset Notice, the Holder
may, by written notice to the Trustee, revoke such tender or repayment until the
close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 306, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 309. OPTIONAL EXTENSION OF STATED MATURITY.
The provisions of this Section 309 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity,
(ii) the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in
52
the next paragraph, such Security will have the same terms as prior to the
transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Maturity of any Security, the Holder
will have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article Thirteen for repayment at the
option of Holders, except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 310. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Sections 306 and
308) interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupons be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or
53
payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global
Security, 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 any depositary, as a Holder, with
respect to such Global Security or impair, as between such depositary and owners
of beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such Global Security.
SECTION 311. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any current or future sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities and coupons so delivered to the Trustee shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation. No Securities shall
be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures, unless by Company Order the Company
shall direct that cancelled Securities be returned to it.
SECTION 312. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 with
respect to any Securities, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
54
SECTION 313. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF
SECURITIES.
(a) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any,
on any Registered or Bearer Security of such series will be made in the Currency
in which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 313 may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (or
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee a written election with signature guarantees and in the applicable form
established pursuant to Section 301, not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such Currency, such election will remain
in effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article Four or Fourteen or with respect
to which a notice of redemption has been given by the Company or a notice of
option to elect repayment has been sent by such Holder or such transferee). Any
Holder of any such Registered Security who shall not have delivered any such
election to the Trustee not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment date in the
relevant Currency as provided in Section 313(a). The Trustee shall notify the
Exchange Rate Agent as soon as practicable after the Election Date of the
aggregate principal amount of Registered Securities for which Holders have made
such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate amounts of
principal of (and premium, if any) and interest, if any, on the Registered
Securities to be paid on such payment date, specifying the amounts in such
Currency so
55
payable in respect of the Registered Securities as to which the Holders of
Registered Securities of such series shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officers' Certificate in respect of the Dollar or Foreign
Currency payments to be made on such payment date. Unless otherwise specified
pursuant to Section 301, the Dollar or Foreign Currency amount receivable by
Holders of Registered Securities who have elected payment in a Currency as
provided in paragraph (b) above shall be determined by the Company on the basis
of the applicable Market Exchange Rate in effect on the third Business Day (the
"Valuation Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above or pursuant
to the terms of Section 301, then with respect to each date for the payment of
principal of (and premium, if any) and interest, if any, on the applicable
Securities denominated or payable in such Foreign Currency occurring after the
last date on which such Foreign Currency was used (the "Conversion Date"), the
Dollar shall be the Currency of payment for use on each such payment date.
Unless otherwise specified pursuant to Section 301, the Dollar amount to be paid
by the Company to the Trustee and by the Trustee or any Paying Agent to the
Holders of such Securities with respect to such payment date shall be, in the
case of a Foreign Currency other than a currency unit, the Dollar Equivalent of
the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent
of the Currency Unit, in each case as determined by the Exchange Rate Agent in
the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a
Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election; and if a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of such election,
such Holder shall receive payment in Dollars as provided in paragraph (d) above
or as otherwise provided pursuant to Section 301.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
56
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined as specified pursuant to Section 301. "Election Date" shall mean the
date for any series of Registered Securities as specified pursuant to
clause (11) of Section 301 by which the written election referred to in
paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of such Securities
denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee of any such decision
or determination.
Except as otherwise provided pursuant to Section 301, in the
event that the Company determines in good faith that a Conversion Event has
occurred with respect to a Foreign Currency, the Company will immediately give
written notice thereof to the Trustee and to the Exchange Rate Agent (and the
Trustee will promptly thereafter give notice in the manner provided for in
Section 106 to the affected Holders) specifying the Conversion Date. Except as
otherwise provided pursuant to Section 301, in the event the Company so
determines that a Conversion Event has occurred with respect to any currency
unit in which Securities are denominated or payable, the Company will
immediately give written notice thereof to the Trustee and to the Exchange Rate
Agent (and the Trustee will promptly thereafter give notice in the manner
provided for in Section 106 to the affected Holders) specifying the Conversion
Date and the Specified Amount of each Component Currency on the Conversion Date.
In the event the Company determines in good faith that any subsequent change in
any Component Currency as set forth in the definition of Specified Amount above
has occurred, the Company will similarly give written notice to the Trustee and
the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Exchange Rate
Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
SECTION 314. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE
RATE AGENT.
(a) Unless otherwise specified pursuant to Section 301, if and
so long as the Securities of any series (i) are denominated in a Currency other
than Dollars or (ii) may be payable in a Currency other than Dollars, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause
57
the Exchange Rate Agent to make the necessary foreign exchange determinations at
the time and in the manner specified pursuant to Section 301 for the purpose of
determining the applicable rate of exchange and, if applicable, for the purpose
of converting the issued Currency into the applicable payment Currency for the
payment of principal (and premium, if any) and interest, if any, pursuant to
Section 313.
(b) No resignation of the Exchange Rate Agent and no appointment
of a successor Exchange Rate Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Exchange Rate
Agent as evidenced by a written instrument delivered to the Company and the
Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities of
one or more or all of such series and that, unless otherwise specified pursuant
to Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
SECTION 315. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use) in addition to serial numbers, and, if so, the Trustee
shall use such "CUSIP" numbers in addition to serial numbers in notices of
repurchase as a convenience to Holders; PROVIDED that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a repurchase and that
reliance may be placed only on the serial or other identification numbers
printed on the Securities, and any such repurchase shall not be affected by any
defect in or omission of such "CUSIP" numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
58
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of
further effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series expressly provided for herein or
pursuant hereto) and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto
(other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has been
waived as provided in Xxxxxxx 000, (xx) Securities and coupons of
such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Xxxxxxx 000,
(xxx) coupons appertaining to Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 1106, and (iv) Securities
and coupons of such series for whose payment money has
theretofore been deposited in trust with the Trustee or any
Paying Agent or segregated and held in trust by the Company and
thereafter repaid to the Company, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i)
or (ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements
satisfactory
59
to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the Currency in
which the Securities of such series are payable, sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest, if any, to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Trustee to any Authenticating Agent under Section 612 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Subsection (1)
of this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee.
60
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events:
(1) default in the payment of any interest on any Security of that
series, or any related coupon, when such interest or coupon becomes due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity, upon acceleration,
redemption or otherwise; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of the Securities of that series and Article Twelve; or
(4) the Company fails to comply with any of its other agreements or
covenants in, or provisions applicable to, the Securities of that series or
this Indenture, and the Default continues for the period and after the
notice, if any, specified below; or
(5) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or one of its
Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or one of its Restricted Subsidiaries), whether such Indebtedness
or guarantee now exists or shall be created hereafter (but excluding any
Indebtedness for the deferred purchase price of property or services owed
to the Person providing such property or services as to which the Company
or such Restricted Subsidiary is contesting its obligation to pay the same
in good faith and by proper proceedings and for which the Company or such
Restricted Subsidiary has established appropriate reserves), and (i) either
(A) such event of default results from the failure to pay any such
Indebtedness at final maturity or (B) as a result of such event of default
the maturity of such Indebtedness has been accelerated prior to its
expressed maturity and (ii) the principal amount of such Indebtedness
equals $10,000,000 or more or, together with the principal amount of any
such Indebtedness in default for failure to pay principal at maturity or
the maturity of which has been so accelerated, aggregates $10,000,000 or
more; or
61
(6) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company
or any Restricted Subsidiary and either (i) an enforcement proceeding shall
have been commenced by any creditor upon such judgment or (ii) such
judgment remains undischarged and unbonded for a period (during which
execution shall not be effectively stayed) of 60 days, PROVIDED that the
aggregate of all such judgments exceeds $10,000,000; or
(7) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case or proceeding,
(ii) consents to the entry of an order for relief against it
in an involuntary case or proceeding,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) admits in writing that it generally is unable to pay its
debts as the same become due; or
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case
or proceeding,
(ii) appoints a Custodian of the Company or for all or
substantially all of its property, or
(iii) orders the liquidation of the Company;
and in each case the order or decree remains unstayed and in effect for 60
days; or
(9) any other Event of Default provided with respect to
Securities of that series.
A Default under Section 501(4) is not an Event of Default with
respect to a series until the Trustee notifies the Company in writing, or the
Holders of at least 25% in
62
principal amount of all Outstanding Securities of such series notify the Company
and the Trustee in writing, of the Default, and the Company does not cure the
Default within 60 days (30 days in the case of a Default under Section 801 or
1004) after receipt of the notice. The notice must specify the Default, demand
that it be remedied and state that the notice is a "Notice of Default." Such
notice to the Company shall be given by the Trustee if so requested in writing
by the Holders of 25% of the principal amount of all the Outstanding Securities
of such series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 501(7) or 501(8)) with respect to the Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of at least 25% in principal amount of the Outstanding Securities
of such series, by written notice to the Company (and to the Trustee if such
notice is given by such Holders), may, and the Trustee at the written request of
such Holders shall, declare all unpaid principal of (or, if the Securities of
such series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that
series), premium, if any, and accrued interest on all the Outstanding Securities
of such series to be due and payable, as specified below. Upon a declaration of
acceleration with respect to Securities of any series (or of all series, as the
case may be), such principal and accrued interest shall be due and payable upon
the first to occur of an acceleration under the Bank Credit Agreement or
10 days after receipt by the Company of such written notice given hereunder. If
an Event of Default specified in Section 501(7) or 501(8) with respect to the
Company occurs, the amounts described above with respect to the Outstanding
Securities of all series shall IPSO FACTO become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder. Upon payment of such principal and interest, all of the Company's
obligations under the Securities of such Series and this Indenture, other than
obligations under Section 606, shall terminate.
The Holders of at least a majority in principal amount of the
Outstanding Securities of any series (or of all series, as the case may be), by
written notice to the Trustee, may rescind an acceleration and its consequences
if (i) all existing Events of Default, other than the non-payment of principal
of, premium, if any, or interest on the Outstanding Securities of such series
(or of all series, as the case may be) and any related coupons which have become
due solely because of the acceleration, have been cured or waived and (ii) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Securities of any series
because an Event of Default specified in Section 501(5) shall have occurred
and be continuing, such declaration of acceleration shall
63
be automatically annulled if the Indebtedness that is the subject of such Event
of Default has been discharged or the holders thereof have rescinded their
declaration of acceleration in respect of such Indebtedness, and written notice
of such discharge or rescission, as the case may be, shall have been given to
the Trustee by the Company and countersigned by the holders of such Indebtedness
or a trustee, fiduciary or agent for such holders, within 30 days after such
declaration of acceleration in respect of the Securities of such series, and no
other Event of Default has occurred during such 30-day period which has not been
cured or waived during such period.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security and any related coupon when such interest becomes due and payable
and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to it for the benefit of
the Holders of such Securities and coupons, the whole amount then due and
payable on such Securities and coupons for principal (and premium, if any) and
interest, if any, and interest on any overdue principal (and premium, if any)
and on any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series
(or of all series, as the case may be) occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series (or of all series, as the
case may be) under this Indenture by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce such rights.
64
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal, premium,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any), or such portion of the principal amount of any
series of Original Issue Discount Securities or Indexed Securities as may
be specified in the terms of such series, and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under
Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any proposal,
plan of reorganization, arrangement, adjustment or composition or other similar
arrangement affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name and as trustee of
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an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities and coupons in respect of which such judgment has been
recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, if any, upon presentation of the Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the Securities
and coupons in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities and coupons for
principal (and premium, if any) and interest, if any, respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series in the case of any Event of Default
described in clause (1), (2), (3), (4), (5), (6) or (9) of Section 501, or,
in the case of any Event of Default described in clause (7) or (8) of
Section 501, the Holders of not less than 25% in principal amount of all
Outstanding Securities, shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
or more in principal amount of the Outstanding Securities of that series in
the case of any Event of Default described in clause (1), (2), (3), (4),
(5), (6) or (9) of Section 501, or, in the case of any Event of Default
described in clause (7) or (8) of Section 501, by the Holders of a majority
or more in principal amount of all Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in the case of any Event of Default
described in clause (1), (2), (3), (4), (5), (6) or (9) of Section 501, or of
Holders of all Securities in the case of any Event of Default described in
clause (7) or (8) of Section 501, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Securities of the same series, in the case of any
Event of Default described in clause (1), (2), (3), (4), (5), (6) or (9) of
Section 501, or of Holders of all Securities in the case of any Event of Default
described in clause (7) or (8) of Section 501.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 308) interest, if any, on, such Security or payment of such coupon on
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
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SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in Section 307, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. CONTROL BY HOLDERS.
With respect to the Securities of any series, the Holders of not
less than a majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, PROVIDED that in each
case
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or expose the Trustee to personal liability, and
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(2) subject to the provisions of the TIA Section 315, the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past Default or Event
of Default described in clause (1), (2), (3), (4), (5), (6) or (9) of
Section 501 (or, in the case of a Default or Event of Default described in
clause (7) or (8) of Section 501, the Holders of not less than a majority in
principal amount of all Outstanding Securities may waive any such past Default
or Event of Default), and its consequences, except a Default or Event of
Default.
(1) in respect of the payment of the principal of (or premium,
if any) or interest, if any, on any Security or any related coupon, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of
Securities of any series by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against
any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or
interest on Securities of any series on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date); PROVIDED that neither this Section
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514 nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such
law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders, as their names and addresses appear in the Security Register,
notice of such default hereunder known to the Trustee, unless such Default shall
have been cured or waived; PROVIDED, HOWEVER, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest, if
any, on any Security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders of Securities of such series and any
related coupons; and PROVIDED FURTHER that in the case of any default or breach
of the character specified in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion,
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report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(8) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any
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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 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements to be made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications set
forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 604. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or of the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 605. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
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SECTION 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
shall be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of Trustee or any predecessor Trustee
for, and to hold it harmless against, any and all loss, damage, claim,
liability or expense including taxes (other than taxes based on the income
of the Trustee) incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section 606, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (or premium, if any) or
interest, if any, on particular Securities or any coupons.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(5) or (6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services will be intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CONFLICTING INTERESTS.
(a) The Trustee shall comply with the provisions of Section
310(b) of the Trust Indenture Act.
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(b) The indenture dated as of August 15, 1997, for the Company's
81/8% Senior Debentures due 2009 shall be deemed to be specifically described
herein for the purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS.
There shall at all times be a Trustee hereunder qualified or to be
qualified under TIA Section 310(a)(1) and which, to the extent there is such an
institution eligible and willing to serve, shall have a combined capital and
surplus of at least $50,000,000. If such Trustee publishes reports of condition
at least annually, pursuant to law or to the requirements of Federal, State,
Territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section 608, the combined capital and surplus 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 at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section 608, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 610.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may, at the
expense of the Company, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of removal, the removed Trustee may, at the expense of the Company,
petition a court of competent jurisdiction for the appointment of a successor
Trustee.
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(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 608 and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least six
months, or
(3) 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 for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 514, the
Holder of any Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with Section 610, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to the Holders of Securities of such series in the manner provided for in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; PROVIDED, HOWEVER, that the
retiring Trustee shall continue to be entitled to the benefit of Section 606;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) 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 retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) 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 retiring
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 retiring Trustee
with
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respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definitions of those terms
in Section 101 which contemplate such situation.
(c) 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 rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
In case any of the Securities shall not have been authenticated by such
predecessor Trustee, any successor Trustee may authenticate such Securities
either in the name of any predecessor hereunder or in the name of the successor
Trustee. In all such cases such certificates shall have the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee; PROVIDED, HOWEVER, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
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SECTION 612. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series and the Trustee shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible
Officer of the Trustee, and a copy of such instrument shall be promptly
furnished to the Company. Wherever reference is made in this Indenture to
the authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by an Authenticating Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any state thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, PROVIDED such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and 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
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor
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Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
Dated: ____________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
-------------------------------
as Authenticating Agent
By
-------------------------------
Authorized Signatory
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company or the
Trustee or any agent of either of them shall be held accountable by reason of
the disclosure of any information as to the names and addresses of the Holders
in accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section 312.
SECTION 702. REPORTS BY TRUSTEE.
Within 60 days after April 1 of each year commencing with the first
April 1 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit to the Holders of Securities, in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such April 1
if required by TIA Section 313(a).
SECTION 703. REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with
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the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, in the manner and to the extent provided in TIA
Section 313(c), such summaries of any information, documents and reports
required to be filed by the Company pursuant to Subsections (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate or merge with or into, or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its assets to, any Person, unless:
(a) the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment,
transfer, lease, conveyance or disposition shall have been made, is a
corporation organized and existing under the laws of the United States, any
state thereof or the District of Columbia and shall assume by supplemental
indenture hereto all the obligations of the Company under the Securities
and this Indenture;
(b) immediately before and immediately after such transaction,
and after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing;
(c) immediately after such transaction, and after giving effect
thereto, the Person formed by or surviving any such consolidation or
merger, or to which such sale, assignment, transfer, lease, conveyance or
disposition shall have been made (the "successor"), shall have a Cash Flow
Ratio not in excess of 9 to 1; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture, if one
is required by this Section 801, comply with this Section 801 and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
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Cash Flow Ratio for purposes of this Section 801 shall be
computed as if any such successor were the Company.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease or conveyance or other disposition of all or substantially all of the
assets, of the Company in accordance with Section 801, the successor Person
formed by such consolidation or into which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein. When a successor assumes all the
obligations of its predecessor under this Indenture and the Securities and the
coupons, the predecessor will be released from those obligations, PROVIDED that
in the case of a transfer by Lease, the predecessor corporation shall not be
released from the payment of principal and interest on the Securities and the
coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities and any related coupons
(and if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are being included solely for the
benefit of such series) or to surrender any right or power herein or in the
Securities conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events
of Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the
benefit of such series); or
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(4) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form; PROVIDED that any such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(6) to secure the Securities, if the Company so elects; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 610(b); or
(9) to close this Indenture with respect to the authentication
and delivery of additional series of Securities; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture; PROVIDED that such action shall
not adversely affect the interests of the Holders of Securities of any
series and any related coupons in any material respect; or
(11) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities pursuant to Sections 401, 1402
and 1403; PROVIDED that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect; or
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(12) to make any other change that does not adversely affect the
rights of any Holder.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of any series, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into one or more indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture which affect
such series of Securities or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; PROVIDED, HOWEVER,
that no such supplemental indenture amendment or waiver shall, without the
consent of the Holder of each Outstanding Security of such series affected
thereby:
(1) change the Stated Maturity of the principal of (or premium,
if any) or any installment of interest on any Security of such series, or
reduce the principal amount thereof (or premium, if any) or the rate of
interest, if any, thereon, or reduce the amount of the principal of an
Original Issue Discount Security of such series that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, or adversely affect any right of repayment at the option of
any Holder of any Security of such series, or change any Place of Payment
where, or the Currency in which, any Security of such series or any premium
or interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of the Holder, on
or after the Redemption Date or Repayment Date, as the case may be), or
adversely affect any right to convert or exchange any Security as may be
provided pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such series the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture
which affect such series or certain defaults applicable to such series
hereunder and their consequences) provided for in this Indenture, or reduce
the requirements of Section 1504 for quorum or voting with respect to
Securities of such series, or
(3) modify any of the provisions of this Section 902, Section
513 or Section 1014, except to increase any such percentage or to provide
that certain other provisions of this Indenture which affect such series
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby of such series.
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A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to TIA Section 315(a) through 315(d) and Section 602 hereof) shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental
85
indenture. If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of
each series of Securities and any related coupons that it will duly and
punctually pay the principal of (and premium, if any) and interest, if any, on
the Securities of that series in accordance with the terms of the Securities,
any coupons appertaining thereto and this Indenture. Unless otherwise specified
as contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities of that series that
are convertible or exchangeable may be surrendered for conversion or exchange,
as applicable and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be
86
surrendered for exchange, where Securities of that series that are convertible
or exchangeable may be surrendered for conversion or exchange, as applicable,
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise)
(B) subject to any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and
surrendered for payment; PROVIDED, HOWEVER, that, if the Securities of that
series are listed on any stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a Paying Agent
for the Securities of that series in any required city located outside the
United States so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible and exchangeable
may be surrendered for conversion or exchange, as applicable and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of any series and the
related coupons may be presented and surrendered for payment at the offices
specified in the Security, in London, and the Company hereby appoints the same
as its agents to receive such respective presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
PROVIDED, HOWEVER, that, if the Securities of a series are payable in
Dollars, payment of principal of (and premium, if any) and interest, if any,
on any Bearer Security shall be made at the office of the Company's Paying
Agent in The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium or interest, as the case may be, at
all offices or agencies outside the United States maintained for such purpose
by the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
any such designation; PROVIDED, HOWEVER,
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that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in accordance with the
requirements set forth above for Securities of any series for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency. Unless otherwise specified with respect to any Securities as
contemplated by Section 301 with respect to a series of Securities, the Company
hereby designates as a Place of Payment for each series of Securities the office
or agency of the Company in the Borough of Manhattan, The City of New York, and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent in
such city and as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i)
are denominated in a Currency other than Dollars or (ii) may be payable in a
Currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to
each such series of Securities, or as so required, at least one Exchange Rate
Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 313(b), 313(d) and 313(e)) sufficient to pay the principal
of (or premium, if any) or interest, if any, on Securities of such series so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, prior to or on each due
date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustee)
for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent
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shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) and interest, if any, on Securities of such
series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of any
payment of principal of (or premium, if any) or interest, if any, on the
Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (or premium, if any) or interest, if
any, on any Security of any series, or any coupon appertaining thereto, and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security or coupon shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
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SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Restricted Subsidiary and the corporate rights
(charter and statutory), corporate licenses and corporate franchises of the
Company and its Restricted Subsidiaries, except where a failure to do so, singly
or in the aggregate, is not likely to have a materially adverse effect upon the
business, assets, financial condition or results of operations of the Company
and the Restricted Subsidiaries taken as a whole determined on a consolidated
basis in accordance with generally accepted accounting principles; PROVIDED that
the Company shall not be required to preserve any such existence (except of the
Company), right, license or franchise if the Board of Directors, or of the
Restricted Subsidiary concerned, shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company or such
Restricted Subsidiary and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Company or any of its Subsidiaries and (b)
all material lawful claims for labor, materials and supplies, which, if unpaid,
might by law become a lien upon the property of the Company or any Restricted
Subsidiary; PROVIDED, HOWEVER, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company shall cause all material properties owned by or leased to
it or any Restricted Subsidiary and necessary in the conduct of its business or
the business of such Restricted Subsidiary to be maintained and kept in normal
condition, repair and working order, ordinary wear and tear excepted; PROVIDED
that nothing in this Section shall prevent the Company or any Restricted
Subsidiary from discontinuing the use, operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Board of Directors or the Restricted Subsidiary
concerned, or of any officer (or other agent employed by the Company or any
Restricted Subsidiary) of the Company or such Restricted Subsidiary having
managerial responsibility for any such property, desirable in the conduct of the
business of the Company or any Restricted Subsidiary of the Company and if such
discontinuance or disposal is not adverse in any material respect to the
Holders.
The Company shall provide or cause to be provided, for itself and any
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds
90
customarily insured against by corporations similarly situated and owning like
properties in the same general areas in which the Company or such Restricted
Subsidiaries operate.
SECTION 1007. LIMITATION ON INDEBTEDNESS.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, incur, create, issue, assume, guarantee or otherwise
become liable for, contingently or otherwise, or become responsible for the
payment of, contingently or otherwise, any Indebtedness (other than Indebtedness
between or among any of the Company and Restricted Subsidiaries) unless, after
giving effect thereto, the Cash Flow Ratio shall be less than or equal to 9 to
1.
SECTION 1008. LIMITATION ON LIENS.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, assume or suffer to exist any Lien of
any kind, except for Permitted Liens, on or with respect to any of its property
or assets, whether owned at the date of this Indenture or hereafter acquired, or
any income, profits or proceeds therefrom, or assign or otherwise convey any
right to receive income thereon, unless (x) in the case of any Lien securing
Indebtedness that is subordinated in right of payment to the Securities of any
series, the Securities of such series are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Lien and (y) in the case
of any other Lien, the Securities of such series are equally and ratably
secured.
SECTION 1009. LIMITATION ON RESTRICTED PAYMENTS.
Except as otherwise provided in this Section 1009, the Company shall
not, and shall not permit any Restricted Subsidiary to, make any Restricted
Payment if (a) at the time of such proposed Restricted Payment, a Default or
Event of Default shall have occurred and be continuing or shall occur as a
consequence of such Restricted Payment or (b) immediately after giving effect to
such Restricted Payment, the aggregate of all Restricted Payments that shall
have been made on or after July 1, 1988 would exceed the sum of:
(i) $25,000,000, plus
(ii) an amount equal to the difference between (A) the Cumulative Cash
Flow Credit and (B) 1.2 multiplied by Cumulative Interest Expense.
For purposes of this Section 1009, the amount of any Restricted
Payment, if other than cash, shall be based upon fair market value as determined
by the Board of Directors, whose good faith determination shall be conclusive.
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The foregoing provisions of this Section 1009 shall not prevent
(i) the payment of any dividend within 60 days after the date of declaration
thereof, if at such date of declaration such payment complied with the
provisions of this Section 1009; (ii) the retirement, redemption, purchase,
defeasance or other acquisition of any shares of the Company's Capital Stock or
warrants, rights or options to acquire Capital Stock of the Company, in exchange
for, or out of the proceeds of a sale (within one year before or 180 days after
such retirement, redemption, purchase, defeasance or other acquisition) of,
other shares of its Capital Stock or warrants, rights or options to acquire
Capital Stock of the Company; and (iii) the redemption of, or payments of cash
dividends on, the Company's 8% Series C Cumulative Preferred Stock (the "Series
C Preferred Stock") outstanding on January 1, 1997, which redemptions or
dividends are provided for by the terms of the Series C Preferred Stock in
effect on such date (or the redemption of or payment of cash dividends on any
security of the Company issued in exchange for or upon the conversion of such
Series C Preferred Stock; PROVIDED that the aggregate amount payable pursuant to
the terms of such security is no greater than the aggregate amount payable
pursuant to the terms of the Series C Preferred Stock). For purposes of
determining the aggregate permissible amount of Restricted Payments in
accordance with clause (b) of the first paragraph of this Section 1009, all
amounts expended pursuant to clauses (i) and (iii) of this paragraph shall be
included and all amounts expended or received pursuant to clause (ii) of this
paragraph shall be excluded; PROVIDED, HOWEVER, that amounts paid pursuant to
clause (i) of this paragraph shall be included only to the extent that such
amounts were not previously included in calculating Restricted Payments.
For the purposes of this Section 1009, the net proceeds from the
issuance of shares of Capital Stock of the Company upon conversion of
Indebtedness shall be deemed to be an amount equal to (i) the accreted value of
such Indebtedness on the date of such conversion and (ii) the additional
consideration, if any, received by the Company upon such conversion thereof,
less any cash payment on account of fractional shares (such consideration, if in
property other than cash, to be determined by the Board of Directors, whose good
faith determination shall be conclusive and evidenced by a Board Resolution).
If the Company makes a Restricted Payment which, at the time of the making of
such Restricted Payment, would in the good faith determination of the Company be
permitted under the requirements of this Section 1009, such Restricted Payment
shall be deemed to have been made in compliance with this Section 1009
notwithstanding any subsequent adjustments made in good faith to the Company's
financial statements affecting Cumulative Cash Flow Credit or Cumulative
Interest Expense for any period.
SECTION 1010. LIMITATION ON INVESTMENTS IN UNRESTRICTED SUBSIDIARIES
AND AFFILIATES.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, (i) make any Investment or (ii) allow any Restricted
Subsidiary to become an Unrestricted Subsidiary (a "redesignation of a
Restricted Subsidiary"), in each case unless (a)
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no Default or Event of Default shall have occurred and be continuing or shall
occur as a consequence of such Investment or such redesignation of a Restricted
Subsidiary and (b) after giving effect thereto, the Cash Flow Ratio shall be
less than or equal to 9 to 1.
The foregoing provisions of this Section 1010 shall not prohibit (i)
any renewal or reclassification of any Investment existing on the date hereof or
(ii) trade credit extended on usual and customary terms in the ordinary course
of business.
SECTION 1011. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Subsidiaries
to, sell, lease, transfer or otherwise dispose of any of its properties or
assets to or purchase any property or assets from, or enter into any contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, an Affiliate of the Company that is not a Subsidiary, having a value, or for
consideration having a value, in excess of $10,000,000 individually or in the
aggregate unless the Board of Directors shall make a good faith determination
that the terms of such transaction are, taken as a whole, no less favorable to
the Company or such subsidiary, as the case may be, than those which might be
available in a comparable transaction with an unrelated Person. For purposes of
clarification, this Section 1011 shall not apply to any Restricted Payments
permitted by Section 1009.
SECTION 1012. PROVISION OF FINANCIAL STATEMENTS.
(a) The Company shall supply without cost to each Holder of the
Securities of any series, and file with the Trustee (if not otherwise filed with
the Trustee pursuant to Section 703) within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports and
quarterly reports and of the information, documents and other reports which the
Company may be required to file with the Commission pursuant to Section 13(a),
13(c) or 15(d) of the Exchange Act.
(b) If the Company is not required to file with the Commission such
reports and other information referred to in Section 1012(a), the Company shall
furnish without cost to each Holder of the Securities and file with the Trustee
(i) within 140 days after the end of each fiscal year, annual reports containing
the information required to be contained in Items 1, 2, 3, 6, 7, 8 and 9 of Form
10-K promulgated under the Exchange Act, or substantially the same information
required to be contained in comparable items of any successor form, and (ii)
within 75 days after the end of each of the first three fiscal quarters of each
fiscal year, quarterly reports containing the information required to be
contained in Form 10-Q promulgated under the Exchange Act, or substantially the
same information required to be contained in any successor form.
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SECTION 1013. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year ending after the date hereof, a brief certificate of its
principal executive officer, principal financial officer or principal accounting
officer stating whether, to such officer's knowledge, the Company is in
compliance with all covenants and conditions to be complied with by it under
this Indenture. For purposes of this Section 1013, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1014. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1007 through 1012 with respect to
Securities of any series if, before or after the time for such compliance, the
Holders of a majority in aggregate principal amount of all Outstanding
Securities of the series shall, by Act of such Holders, waive such compliance in
such instance or generally waive compliance with such covenant or condition, but
no such waiver shall extend to or affect such covenant or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 1103. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
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elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series; PROVIDED,
HOWEVER, that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 301, notice
of redemption shall be given in the manner provided for in Section 106 not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed.
All notices of redemption shall identify the Securities (including
CUSIP number, if any) to be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
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(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in
Section 1106 will become due and payable upon each such Security, or the
portion thereof, to be redeemed and, if applicable, that interest thereon
will cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date or
the amount of any such missing coupon or coupons will be deducted from the
Redemption Price unless security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished, and
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on such Redemption Date pursuant to Section 306 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 313(b), 313(d) and 313(e))
sufficient to pay the Redemption Price of, and accrued interest, if any, on, all
the Securities which are to be redeemed on that date.
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SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 313(b), 313(d) and 313(e)) (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and PROVIDED FURTHER
that installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 308.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
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SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustee by the Company
or for Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
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such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; PROVIDED, HOWEVER, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 313(b), 313(d) and 313(e)) and the portion thereof, if any,
which is to be satisfied by delivering or crediting Securities of that series
pursuant to Section 1202 (which Securities will, if not previously delivered,
accompany such certificate) and whether the Company intends to exercise its
right to make a permitted optional sinking fund payment with respect to such
series. Such certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. In the case of
the failure of the Company to deliver such certificate, the sinking fund payment
due on the next succeeding sinking fund payment date for that series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
such Securities subject to a mandatory sinking fund payment without the option
to deliver or credit Securities as provided in Section 1202 and without the
right to make any optional sinking fund payment, if any, with respect to such
series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
Prior to any sinking fund payment date, the Company shall pay to the
Trustee or a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) in cash a sum equal to
any interest that will accrue to the date fixed for redemption of Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 1203.
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Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. Any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next succeeding
sinking fund payment date or, at the written request of the Company, shall be
applied at any time or from time to time to the purchase of Securities of such
series, by public or private purchase, in the open market or otherwise, at a
purchase price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustee or any Paying Agent will be promptly
reimbursed by the Company) not in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES.
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on
or before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 313(b), 313(d) and 313(e)) sufficient to pay
the principal (or, if so provided by the terms of the Securities of any series,
a percentage of the principal) of and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest, if any, on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
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SECTION 1303. EXERCISE OF OPTION.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE.
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
PROVIDED, HOWEVER, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and PROVIDED FURTHER that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable to the Holders of such Securities,
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or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 308.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; PROVIDED, HOWEVER, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. SECURITIES REPAID IN PART.
Upon surrender of any Registered Security which is to be repaid in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of this Article Fourteen shall apply to
each series of Securities, and the
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Company may, at its option, effect defeasance of the Securities of or within a
series under Section 1402, or covenant defeasance of or within a series under
Section 1403 in accordance with the terms of such Securities and in accordance
with this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any related coupons on the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons to receive, solely from the trust
fund described in Section 1404 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on such Securities and any related coupons when such payments are due,
(B) the Company's obligations with respect to such Securities under Sections
304, 305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article Fourteen. Subject to
compliance with this Article Fourteen, the Company may exercise its option under
this Section 1402 notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any related coupons.
SECTION 1403. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 1402 of the option
applicable to this Section 1403 with respect to any Securities of or within a
series, the Company shall be released from its obligations under any covenant
under Article Eight and in Sections 1004 through 1012, and, if specified
pursuant to Section 301, its obligations under any other covenant, with respect
to such Outstanding Securities and any related coupons on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any related coupons shall thereafter be
deemed to be not "Outstanding" for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder (it being understood that such Securities shall
not be deemed Outstanding for financial accounting purposes). For this purpose,
such covenant defeasance means that, with respect to such Outstanding Securities
and any related coupons, the Company may omit to
103
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 501(4) or Section 501(9) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities and any related coupons shall be unaffected thereby. In addition,
upon the Company's exercise under Section 1401 of the option applicable to
Section 1403, Sections 501(4) through (6) shall not constitute Events of
Default.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either
Section 1402 or Section 1403 to any Outstanding Securities of or within a series
and any related coupons:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
related coupons, (A) an amount (in such Currency in which such Securities
and any related coupons are then specified as payable at Stated Maturity),
or (B) Government Obligations applicable to such Securities (determined on
the basis of the Currency in which such Securities are then specified as
payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment of
principal of and premium, if any, and interest, if any, under such
Securities and any related coupons, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of (and premium, if any) and interest, if any, on such
Outstanding Securities and any related coupons on the Stated Maturity (or
Redemption Date, if applicable) of such principal (and premium, if any) or
installment of interest, if any, and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities
and any related coupons on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities and any related coupons; PROVIDED that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such Securities and
any related coupons. Before such a deposit, the Company may give to the
Trustee, in accordance with Section 1102 hereof, a notice of its election
to redeem all or any portion of such Outstanding Securities at a future
date in accordance
104
with the terms of the Securities of such series and Article Eleven hereof,
which notice shall be irrevocable. Such irrevocable redemption notice, if
given, shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such Securities or
any related coupons shall have occurred and be continuing on the date of
such deposit or, insofar as paragraphs (7) and (8) of Section 501 are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(3) No event or condition shall exist that would prevent the Company
from making payments of the principal of (and premium, if any) or interest
on the Securities on the date of such deposit or at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(5) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of execution of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
related coupons will not recognize income, gain or loss for federal income
tax purposes as a result of such defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred.
(6) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any related coupons will not
recognize income, gain or loss for federal income tax purposes as a result
of such covenant defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(7) In the case of an election under either Section 1402 or 1403, the
Company shall represent to the Trustee that the deposit made by the Company
pursuant to its election under Section 1402 or 1403 was not made by the
Company with the intent of preferring the Holders of Securities of any
series over other creditors of the Company
105
or with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others.
(8) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations in connection
therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1402
or the covenant defeasance under Section 1403 (as the case may be) have
been complied with.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of such Outstanding Securities
and any related coupons shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any related coupons and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any related coupons of all sums
due and to become due thereon in respect of principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(1) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 313(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 1404(1) has been made in respect of such Security, or (b) a
Conversion Event occurs as contemplated in Section 313(d) or 313(e) or by the
terms of any Security in respect of which the deposit pursuant to
Section 1404(1) has been made, the indebtedness represented by such Security and
any related coupons shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the third Business Day prior
106
to each payment date, except, with respect to a Conversion Event, for such
Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any related
coupons.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; PROVIDED, HOWEVER, that if the Company makes any
payment of principal of (or premium, if any) or interest, if any, on any such
Security or any related coupon following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
and any related coupons to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or
107
other action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in The City of New York or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided for in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in The City
of New York or in London for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in paragraph (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Person
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1504. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; PROVIDED, HOWEVER, that, if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the
108
Persons entitled to vote such specified percentage in principal amount of the
Outstanding Securities of such series shall constitute a quorum. In the absence
of a quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 1502(a), except
that such notice need be given only once not less than five days prior to the
date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of any adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for lack of a quorum the Persons entitled to vote 25% in principal amount of the
Outstanding Securities at the time shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of
not less than a majority in principal amount of the Outstanding Securities of
such series; PROVIDED, HOWEVER, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of not less than such specified percentage in
principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
109
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Outstanding
Securities of such series held or represented by him (determined as specified in
the definition of "Outstanding" in Section 101); PROVIDED, HOWEVER, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
110
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the Secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
CABLEVISION SYSTEMS
CORPORATION
By:
----------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
----------------------------
Name:
Title:
EXHIBIT A
LIST OF RESTRICTED SUBSIDIARIES
A-R Cable Services - NY, Inc.
Arsenal MSub 2, Inc.
Cable Science Corporation
Cablevision Area 9 Corporation
Cablevision Fairfield Corporation
Cablevision Finance Corporation
Cablevision Finance Limited Partnership
Cablevision Lightpath, Inc.
Cablevision MFR, Inc.
Cablevision of Boston, Inc.
Cablevision of Brookline Limited Partnership
Cablevision of Brookline, Inc.
Cablevision of Connecticut Corporation
Cablevision of Connecticut Limited Partnership
Cablevision of Xxxxxx County, Inc.
Cablevision of Michigan, Inc.
Cablevision of Monmouth, Inc.
Cablevision of New Jersey, Inc.
Cablevision of New York City - Master L.P.
Cablevision of New York City - Phase I L.P.
Cablevision of Newark
Cablevision Systems Brookline Corporation
Cablevision Systems Dutchess Corporation
Cablevision Systems East Hampton Corporation
Cablevision Systems Great Neck Corporation
Cablevision Systems Huntington Corporation
Cablevision Systems Islip Corporation
Cablevision Systems Long Island Corporation
Cablevision Systems New York City Corporation
Cablevision Systems of Southern Connecticut Limited Partnership
Cablevision Systems Suffolk Corporation
Cablevision Systems Westchester Corporation
Communications Development Corporation
CSC Acquisition - MA, Inc.
CSC Acquisition - NY, Inc.
CSC Acquisition Corporation
CSC Gateway Corporation
NYC GP Corp.
A-2
NYC LP Corp.
Petra Cablevision Corporation
Samson Cablevision Corp.
Suffolk Cable Corporation
Suffolk Cable of Shelter Island, Inc.
Suffolk Cable of Smithtown, Inc.
EXHIBIT B-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations
Section 2.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such United
States financial institution hereby agrees, on its own behalf or through its
agent, that you may advise Cablevision Systems Corporation or its agent that
such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United
States or foreign financial institution described in clause (iii) above (whether
or not also described in clause (i) or (ii)), this is to further certify that
such financial institution has not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement
B-1-1
herein is not correct on such date, and in the absence of any such notification
it may be assumed that this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]__________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or
(ii) the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
-----------------------------------
(AUTHORIZED SIGNATORY)
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$]__________ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Cablevision Systems
Corporation or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that financial
institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) have certified that they have not acquired the Securities
for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
B-2-1
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the Euroclear
System]
[Cedel Bank, S.A.]
By
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B-2-2
