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EXHIBIT 4.3
FFHS&J Draft
8/15/97
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ALLIED WASTE INDUSTRIES, INC., as Issuer
to
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
SENIOR INDENTURE
Dated as of , 1997
Providing for Issuance of
Senior Debt Securities in Series
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Reconciliation and tie between Senior Indenture, dated as of , 1997
(the "Indenture") and the Trust Indenture Act of 1939, as amended.
Trust Indenture Act Indenture
of 0000 Xxxxxxx Xxxxxxx
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310(a)(1).......................................................6.9
(a)(2).................................................6.9
(a)(3).................................................TIA
(a)(4).................................................Not Applicable
(a)(5).................................................TIA
(b)....................................................6.8; 6.10; TIA
311(a)..........................................................TIA
(b)....................................................TIA
312(a)..........................................................10.1
(b)....................................................TIA
(c)....................................................TIA
313(a)..........................................................10.3; TIA
(b)....................................................TIA
(c)....................................................TIA
(d)....................................................TIA
314(a)..........................................................10.4; TIA
(b)....................................................Not Applicable
(c)(1).................................................1.2
(c)(2).................................................1.2
(c)(3).................................................Not Applicable
(d)....................................................Not Applicable
(e)....................................................TIA
(f)....................................................TIA
315(a)..........................................................6.1
(b)....................................................6.2
(c)....................................................6.1
(d)(1).................................................TIA
(d)(2).................................................TIA
(d)(3).................................................TIA
(e)....................................................TIA
316(a)(last sentence)...........................................1.1
(a)(1)(A)..............................................5.2; 5.8
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(a)(1)(B)..............................................5.7
(b)....................................................5.9; 5.10
(c)....................................................TIA
317(a)(1).......................................................5.3
(a)(2).................................................5.4
(b)....................................................9.3
318(a)..........................................................1.12
(b)....................................................TIA
(c)....................................................1.12; TIA
This reconciliation and tie section does not constitute part of the Indenture.
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TABLE OF CONTENTS
Page
Recitals .......................................................................................... 1
ARTICLE 1 Definitions and Other Provisions of General Application................................ 1
Section 1.1. Definitions................................................................ 1
Section 1.2. Compliance Certificates and Opinions....................................... 12
Section 1.3. Form of Documents Delivered to Trustee..................................... 13
Section 1.4. Acts of Holders............................................................ 13
Section 1.5. Notices, Etc., to Trustee and Company...................................... 16
Section 1.6. Notice to Holders; Waiver.................................................. 16
Section 1.7. Headings and Table of Contents............................................. 17
Section 1.8. Successor and Assigns...................................................... 17
Section 1.9. Separability............................................................... 17
Section 1.10. Benefits of Indenture..................................................... 17
Section 1.11. Incorporators, Stockholders, Officers and Directors of the Company
Exempt from Individual Liability...................................... 18
Section 1.12. Governing Law; Conflict with Trust Indenture Act.......................... 18
Section 1.13. Legal Holidays............................................................ 18
Section 1.14. Moneys of Different Currencies to Be Segregated........................... 19
Section 1.15. Independence of Covenants................................................. 19
Section 1.16. Counterparts.............................................................. 19
ARTICLE 2 Security Forms......................................................................... 19
Section 2.1. Forms Generally............................................................ 19
Section 2.2. Form of Trustee's Certificate of Authentication............................ 20
Section 2.3. Securities in Global Form.................................................. 20
Section 2.4. Form of Legend for Securities in Global Form............................... 21
ARTICLE 3 The Securities......................................................................... 21
Section 3.1. Amount Unlimited; Issuable in Series....................................... 21
Section 3.2. Denominations.............................................................. 26
Section 3.3. Execution, Authentication, Delivery and Dating............................. 26
Section 3.4. Temporary Securities....................................................... 30
Section 3.5. Registration, Transfer and Exchange........................................ 30
Section 3.6. Replacement Securities..................................................... 35
Section 3.7. Payment of Interest; Interest Rights Preserved............................. 36
Section 3.8. Persons Deemed Owners...................................................... 38
Section 3.9. Cancellation............................................................... 39
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Section 3.10. Computation of Interest................................................... 40
Section 3.11. CUSIP Numbers............................................................. 40
Section 3.12. Currency and Manner of Payment in Respect of Securities................... 40
ARTICLE 4 Satisfaction, Discharge and Defeasance................................................. 40
Section 4.1. Termination of Company's Obligations Under the Indenture................... 40
Section 4.2. Application of Trust Funds................................................. 42
Section 4.3. Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Covenant Defeasance..................................... 42
Section 4.4. Defeasance and Discharge................................................... 43
Section 4.5. Covenant Defeasance........................................................ 43
Section 4.6. Conditions to Defeasance or Covenant Defeasance............................ 44
Section 4.7. Deposited Money and Government Obligations to Be Held in Trust............. 46
Section 4.8. Repayment to Company....................................................... 46
Section 4.9. Indemnity for Government Obligations....................................... 47
Section 4.10. Reinstatement............................................................. 47
ARTICLE 5 Defaults and Remedies.................................................................. 47
Section 5.1. Events of Default.......................................................... 47
Section 5.2. Acceleration; Rescission and Annulment..................................... 50
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee............ 51
Section 5.4. Trustee May File Proofs of Claim........................................... 52
Section 5.5. Trustee May Enforce Claims Without Possession of Securities................ 52
Section 5.6 Delay or Omission Not Waiver................................................ 52
Section 5.7. Waiver of Past Defaults.................................................... 53
Section 5.8. Control by Majority........................................................ 53
Section 5.9. Limitation on Suits by Holders............................................. 53
Section 5.10. Rights of Holders to Receive Payment...................................... 54
Section 5.11. Application of Money Collected............................................ 54
Section 5.12. Restoration of Rights and Remedies........................................ 55
Section 5.13. Rights and Remedies Cumulative............................................ 55
Section 5.14. Undertaking for Costs..................................................... 56
Section 5.15. Waiver of Stay, Extension or Usury Laws................................... 56
ARTICLE 6 The Trustee............................................................................ 56
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Section 6.1. Certain Duties and Responsibilities........................................ 56
Section 6.2. Notice of Defaults......................................................... 57
Section 6.3. Certain Rights of Trustee.................................................. 57
Section 6.4. Not Responsible for Recitals or Issuance of Securities..................... 58
Section 6.5. May Hold Securities........................................................ 58
Section 6.6. Money Held in Trust........................................................ 58
Section 6.7. Compensation and Reimbursement............................................. 59
Section 6.8. Conflicting Interests...................................................... 59
Section 6.9. Corporate Trustee Required; Eligibility.................................... 60
Section 6.10. Resignation and Removal; Appointment of Successor......................... 60
Section 6.11. Acceptance of Appointment by Successor.................................... 62
Section 6.12. Merger, Conversion, Consolidation or Succession to Business............... 63
Section 6.13. Preferential Collection of Claims Against Company......................... 63
Section 6.14. Appointment of Authenticating Agent....................................... 63
ARTICLE 7 Consolidation, Merger or Sale of Assets by the Company................................ 65
Section 7.1. Consolidation, Merger or Sale of Assets Permitted.......................... 65
ARTICLE 8 Supplemental Indentures............................................................... 66
Section 8.1. Supplemental Indentures Without Consent of Holders......................... 66
Section 8.2. Supplemental Indentures With Consent of Holders............................ 68
Section 8.3. Compliance with Trust Indenture Act........................................ 69
Section 8.4. Execution of Supplemental Indentures....................................... 69
Section 8.5. Effect of Supplemental Indentures.......................................... 70
Section 8.6. Reference in Securities to Supplemental Indentures......................... 70
Section 8.7. Notice of Supplemental Indentures.......................................... 70
ARTICLE 9 Covenants............................................................................. 70
Section 9.1. Payment of Principal, Premium, if any, and Interest........................ 70
Section 9.2. Maintenance of Office or Agency............................................ 71
Section 9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money......... 72
Section 9.4. Corporate Existence........................................................ 74
Section 9.5. Annual Review Certificate.................................................. 74
Section 9.6. Waiver of Certain Covenants................................................ 74
ARTICLE 10 Holders' Lists and Reports by Trustee and Company..................................... 75
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Section 10.1. Company to Furnish Trustee Names and Addresses of Holders................. 75
Section 10.2. Preservation of Information, Communications to Holders.................... 75
Section 10.3. Reports by Trustee........................................................ 75
Section 10.4. Reports by the Company.................................................... 76
ARTICLE 11 Redemption............................................................................ 76
Section 11.1. Applicability of Article.................................................. 76
Section 11.2. Election to Redeem; Notice to Trustee..................................... 76
Section 11.3. Selection of Securities to Be Redeemed.................................... 77
Section 11.4. Notice of Redemption...................................................... 77
Section 11.5. Deposit of Redemption Price............................................... 79
Section 11.6. Securities Payable on Redemption Date..................................... 79
Section 11.7. Securities Redeemed in Part............................................... 80
ARTICLE 12 Sinking Funds......................................................................... 80
Section 12.1. Applicability of Article.................................................. 80
Section 12.2. Satisfaction of Sinking Fund Payments with Securities..................... 81
Section 12.3. Redemption of Securities for Sinking Fund................................. 81
ARTICLE 13 Meetings of Holders of Securities..................................................... 82
Section 13.1. Purposes for Which Meetings May Be Called................................. 82
Section 13.2. Call, Notice and Place of Meetings........................................ 82
Section 13.3. Persons Entitled to Vote at Meetings...................................... 82
Section 13.4. Quorum; Action............................................................ 82
Section 13.5. Determination of Voting Rights; Conduct and Adjournment of Meetings....... 84
Section 13.6. Counting Votes and Recording Action of Meetings........................... 85
ARTICLE 14 Conversion or Exchange of Securities.................................................. 85
Section 14.1. Applicability of Article.................................................. 85
Section 14.2. Exercise of Conversion or Exchange Privilege.............................. 86
Section 14.3. No Fractional Equity Securities........................................... 87
Section 14.4. Adjustment of Conversion or Exchange Price; Consolidation or Merger....... 88
Section 14.5. Notice of Certain Corporate Actions....................................... 88
Section 14.6. Reservation of Equity Securities.......................................... 89
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Section 14.7. Payment of Certain Taxes Upon Conversion or Exchange...................... 89
Section 14.8. Duties of Trustee Regarding Conversion or Exchange........................ 90
Section 14.9. Repayment of Certain Funds Upon Conversion or Exchange.................... 90
ARTICLE 15 Jurisdiction and Consent to Service of Process........................................ 90
Section 15.1. Jurisdiction and Consent to Service of Process............................ 90
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SENIOR INDENTURE (the "Indenture"), dated as of ___________,
1997, between ALLIED WASTE INDUSTRIES, INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), having its
principal office at 00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000 and FIRST TRUST NATIONAL ASSOCIATION, a national banking
association, as Trustee (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its secured or
unsecured unsubordinated debentures, notes or other evidences of indebtedness
("Securities") to be issued in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities or of
any series thereof:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions. (a) For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles as in effect in the United States of America from
time to time; provided that when two or more principles are so
generally accepted, it shall mean that set of principles consistent
with those in use by the Company; 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.
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"Affiliate" of any specified Person means any Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
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" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive publications in
an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or different Authorized Newspapers.
"AWNA" means Allied Waste North America, Inc., a Delaware
corporation and wholly owned subsidiary of the Company.
"Bearer Security" means any Security issued hereunder which is
payable to bearer.
"Board" or "Board of Directors" means the Board of Directors
of the Company, or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board
of Directors, 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 the certificate, and delivered to the Trustee.
"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 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law, regulation or executive
order to close.
"Capital Lease Obligation" of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other arrangements
conveying the right to
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use) real or personal property by such Person which is required to be classified
and accounted for as a capital lease or a liability on a balance sheet of such
Person in accordance with generally accepted accounting principles. The stated
maturity of such obligation shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty. The principal
amount of such obligation shall be the capitalized amount thereof that would
appear on a balance sheet of such Person in accordance with generally accepted
accounting principles.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the Company in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter means
such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers, one
of whom must be the Chairman of the Board, the President, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer, a Vice
President, the Treasurer or the Secretary of the Company.
"consent", "waive" and "rescind", when used with respect to
the consent, waiver or rescission of or by the Holders of a specified percentage
in aggregate principal amount of Securities of any series, shall mean any of (i)
a favorable vote with respect to such consent, waiver or rescission, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article 13, by the Holders of the applicable
percentage in aggregate principal amount of such Securities specified in the
second paragraph of Section 13.4; (ii) written consents, waivers or rescissions
of or by the Holders of such specified percentage in aggregate principal amount
of such Securities; and (iii) a combination of the favorable vote with respect
to such consent, waiver or rescission, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
13, by the Holders of less than the applicable percentage in aggregate principal
amount of such Securities specified in the second paragraph of Section 13.4 and
written consents, waivers or rescissions of other Holders of such Securities,
where the sum of the percentage of such Holders so voting in favor and the
percentage of such Holders signing such written consents, waivers or rescissions
is equal to at least such specified percentage.
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"Corporate Trust Office" means an office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration.
"currency unit" for all purposes of this Indenture shall
include any composite currency, including, without limitation, ECU.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person,
(i) every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations Incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every Capital Lease Obligation of such Person, (vi) the maximum
fixed redemption or repurchase price of Redeemable Interests of such Person at
the time of determination, (vii) every net payment obligation of such Person
under interest rate swap or similar agreements or foreign currency hedge,
exchange or similar agreements at the time of determination and (viii) every
obligation of the type referred to in Clauses (i) through (vii) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has Guaranteed or for which such Person is responsible or liable,
directly or indirectly, jointly or severally, as obligor, Guarantor or
otherwise.
"Default" means, with respect to Securities of any series, any
event which is, or after notice or passage of time, or both, would be, an Event
of Default with respect to Securities of such series.
"Depositary", when used with respect to the Securities of or
within any series issuable or issued in whole or in part in global form, means
the Person designated as Depositary by the Company pursuant to Section 3.1(b)
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States that at the
time of payment is legal tender for the payment of public and private debts.
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"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Rate Certificate" means a certificate, signed by a
Responsible Officer of the Trustee, setting forth (i) the applicable Market
Exchange Rate or the applicable bid quotation and (ii) the Dollar amount 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 in
the relevant currency or currency unit), that would be payable with respect to a
Security of the applicable series on the basis of such Market Exchange Rate or
the applicable bid quotation.
"Foreign Currency" means any currency issued by the government
of one or more countries other than the United States or by any recognized
confederation or association of such governments.
"Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case (x) or
(y), are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a) (2) of the Securities Act of 1933, as amended) as custodian with respect to
any such Government Obligation or a specific payment of principal of or interest
on any such Government Obligation held by such custodian for the account of the
holder of such 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
principal of or interest on the Government Obligation evidenced by such
depository receipt.
"Guaranty" or "Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing any Debt, or dividends or
distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including, without
limitation, any obligation of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Debt, (ii) to purchase property, securities or services for the purpose
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of assuring the holder of such Debt of the payment of such Debt or (iii) to
maintain working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guaranty by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of an interest coupon appertaining thereto and, with respect to a
Registered Security, a Person in whose name a Security is registered on the
Register.
"Incur" means, with respect to any Debt of any Person, to
create, issue, incur (by conversion, exchange or otherwise), assume, Guarantee
or otherwise become liable in respect of such Debt, or the taking of any other
action which would cause such Debt, in accordance with generally accepted
accounting principles to be recorded on the balance sheet of such Person (and
"Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing), provided that, the Debt of any other Person
becoming a Restricted Subsidiary of such Person will be deemed for this purpose
to have been Incurred by such Person at the time such other Person becomes a
Restricted Subsidiary of such Person; provided, further, that a change in
generally accepted accounting principles that results in an obligation of such
Person that exists at such time becoming Debt shall not be deemed an Incurrence
of such Debt.
"Indenture" means this instrument as originally executed 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,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity is based, at least
in part, upon the performance or value of a specified market index, reference
security or other variable and 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 and, when used with respect to any other
Security, means the interest payable thereon in accordance with its terms.
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"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, (i) for a conversion of any
currency unit into Dollars, the exchange rate between the relevant currency unit
and Dollars calculated by the method specified pursuant to Section 3.1 for the
Securities of the relevant series, and (ii) for a conversion of any Foreign
Currency into Dollars, the applicable exchange rate between such Foreign
Currency and Dollars set forth under the heading, "Currency Trading -- Exchange
Rates" in the "Money & Investing" section of The Wall Street Journal (or in such
other section of The Wall Street Journal in which foreign currency exchange
rates may be regularly published from time to time) as of the most recent
available date, in each case as determined by the Trustee. Unless otherwise
specified with respect to any Securities pursuant to Section 3.1, in the event
of the unavailability of any of the exchange rates provided for in the foregoing
clauses (i) and (ii), the Trustee shall use the average of the quotations from
at least three major banks acceptable to the Company in The City of New York
(which may include any such bank acting as Trustee under this Indenture), or
such other quotations as the Trustee and the Company shall deem appropriate.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate", when used with respect to the
Company, means a certificate signed by two Officers, one of whom must be the
Chairman of the Board, the President, the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer, any Vice President, the
Treasurer or the Secretary of the Company.
"Opinion of Counsel" means a written opinion from the general
counsel of the Company or other legal counsel who is reasonably acceptable to
the Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
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"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 or
redemption money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as a Paying Agent)
for the Holders of such Securities and any interest 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 provisions therefor
satisfactory to the Trustee have been made;
(iii) Securities, except to the extent provided in Sections
4.4 and 4.5, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article 4; and
(iv) Securities which have been replaced or paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (w) the principal amount of any Original Issue Discount
Securities 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 5.2, (x) the principal
amount of any Security denominated in a 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 Certificate, 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 (w) above) of
such
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Security, (y) 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 3.1, and (z) 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 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 of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, interest, if any, and any other payments
due on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula or formulae for
determining the rate or rates of interest thereon, if any, the Maturity thereof,
the redemption provisions, if any, and any other terms specified as contemplated
by Section 3.1, with respect thereto, are to be determined by the Company upon
the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
other entity, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the principal of,
premium, if any, interest and any other payments due on such Securities are
payable as specified as contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
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"Redeemable Interest" of any Person means any equity security
of or other ownership interest in such Person that by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable) or
otherwise (including upon the occurrence of an event) matures or is required to
be redeemed (pursuant to any sinking fund obligation or otherwise) or is
convertible into or exchangeable for Debt or is redeemable at the option of the
holder thereof, in whole or in part, at any time prior to the final Stated
Maturity of the Securities.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date specified
for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee,
shall mean any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer, or any officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also shall mean,
with respect to a particular corporate trust matter, any officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means (i) at any date, a Subsidiary of
the Company that is not an Unrestricted Subsidiary as of such date and (ii) for
any period, a Subsidiary of the Company that for any portion of such period is
not an Unrestricted Subsidiary, provided that such term shall mean such
Subsidiary only for such portion of such period.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or Securities
of the Company issued, authenticated and delivered under this Indenture.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
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"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 in an interest 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.
"Subsidiary" of any Person means any Person of which at least
a majority of the outstanding voting securities having ordinary voting power for
the election of directors or other governing body, or other ownership interests
ordinarily constituting a majority voting interest, is owned or controlled,
directly or indirectly, by such Person or by one or more Subsidiaries of such
Person, or by such Person and one or more Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in effect on the date of this Indenture, except as provided in
Section 8.3; provided, however, that if the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more than one Trustee, "Trustee" as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of that series.
"United States" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, the United
States of America (including the States thereof and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction.
"Unrestricted Subsidiary", with respect to any series of
Securities, shall have the meaning established in accordance with Section 3.1(b)
with respect to such series of Securities.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, 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 any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
"Vice President", when used with respect to the Company, means
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President."
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"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
the Company or by one or more Wholly Owned Restricted Subsidiaries or by the
Company and one or more Wholly Owned Restricted Subsidiaries.
(b) The following terms shall have the meanings specified in
the Sections referred to opposite such term below:
Term Section
---- -------
"Act" 1.4(a)
"Common Stock" 14.1(b)(i)
"covenant defeasance" 4.5
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Equity Securities" 14.1(b)
"Event of Default" 5.1
"NASDAQ" 14.3
"Preferred Stock" 14.1(b)(ii)
"Register" 3.5
"Registrar" 3.5
Section 1.2. 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 such
certificates and opinions as may be required under the Trust Indenture Act
(including Section 314(c) of the Trust Indenture Act). Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by an officer or officers of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 2.3, the last paragraph of Section 3.3 and Section 9.5) shall include:
(a) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
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(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or opinion or any 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 officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion is based 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 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed (either
physically or by means of a facsimile or an electronic transmission, provided,
in the case of an electronic transmission, that it is transmitted through the
facilities of a Depositary) by such Holders in person or by agent or proxy duly
appointed in writing. If Securities of a series are issuable as Bearer
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Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof pursuant to the second paragraph of Section 13.4, 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
13, 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 received (either physically or,
if the Securities are held through the facilities of a Depositary, by means of a
facsimile or an electronic transmission, provided, in the case of an electronic
transmission, that it is transmitted through the facilities of a Depositary) by
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and 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 such meeting. The Company
and the Trustee may assume that any Act of a Holder has not been modified or
revoked unless written notice to the contrary is received prior to the time that
the action to which such Act relates has become effective. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 315 of the
Trust Indenture Act) 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 13.6.
(b) The fact and date of the execution by any Person of any
such instrument or writing and the authority of the Person executing the same
may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, 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 trust company,
bank, banker or other depository, 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 (i) another
such certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, (ii) such Bearer Security is produced to the
Trustee by some other Person, (iii) such Bearer Security is surrendered in
exchange for a Registered Security or (iv) such Bearer Security is no longer
Outstanding. The ownership of Bearer Securities may also be proved in any other
manner which the Trustee deems sufficient.
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(d) The ownership of Registered Securities shall be proved by
the Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and any interest coupons appertaining thereto
and the Holder of every Security or interest coupon issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such Act is made upon such Security
or interest coupon.
(f) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders of Registered Securities 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
Section 316(c) of the Trust Indenture Act, 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 first 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 Registered Securities 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
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
Without limiting the foregoing, a Holder entitled to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of the principal amount of such Security to which
such appointment relates.
Section 1.5. 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,
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(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, or at any other address previously furnished in
writing to the Holders or the Company by the Trustee, or, with respect to
notices by the Company, transmitted by facsimile transmission (confirmed by
guaranteed overnight courier) to the following facsimile number: (000) 000-0000
or to any other facsimile number previously furnished in writing to the Company
by the Trustee, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to it addressed
to it at the address of the Company's principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company or, with respect to notices by the
Trustee, transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (000) 000-0000 or to any
other facsimile number previously furnished in writing to the Trustee by the
Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (i) if any of the Securities
affected by such event are Registered Securities, such notice to the Holders
thereof shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at his or her address as it appears in the Register,
within the time prescribed for the giving of such notice, and (ii) if any of the
Securities affected by such event are Bearer Securities, notice to the Holders
thereof shall be sufficiently given (unless otherwise herein or in the terms of
such Bearer Securities expressly provided) if published twice in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.1. Such notices shall be deemed to
have been given on the date of such mailing or publication.
In any case where notice to Holders is given by mail or by
publication, neither the failure to mail or publish such notice, nor any defect
in any notice so mailed or published, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or of Bearer Securities. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice as
provided above, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
If it is impossible or, in the opinion of the
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Trustee, impracticable to give any notice by publication in the manner herein
required, then such publication in lieu thereof as shall be made with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
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 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 1.7. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.8. Successor and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 1.9. Separability. In case any provision of this
Indenture or the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.10. Benefits of Indenture. Nothing in this Indenture
or in the Securities, expressed or implied, shall give to any Person, other than
the parties hereto and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Incorporators, Stockholders, Officers and
Directors of the Company Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement of or contained in this Indenture or
of or contained in any Security or interest coupon appertaining thereto, or for
any claim based thereon or otherwise in respect thereof, or because of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor Person, either directly or through the Company or any
successor Person, whether by virtue of any constitution, statute or rule of law,
by the enforcement of any assessment or penalty, by any legal or equitable
proceeding or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of the acceptance of, and
as a part of the consideration for the
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execution of this Indenture and the issuance of, the Securities and any interest
coupons appertaining thereto.
Section 1.12. Governing Law; Conflict with Trust Indenture
Act. THIS INDENTURE, THE SECURITIES AND ANY INTEREST COUPONS APPERTAINING
THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. This Indenture is subject to the Trust Indenture Act and if
any provision hereof limits, qualifies or conflicts with the Trust Indenture
Act, the Trust Indenture Act shall control. Whether or not this Indenture is
required to be qualified under the Trust Indenture Act, the provisions of the
Trust Indenture Act required to be included in an indenture in order for such
indenture to be so qualified shall be deemed to be included in this Indenture
with the same effect as if such provisions were set forth herein and any
provisions hereof which may not be included in an indenture which is so
qualified shall be deemed to be deleted or modified to the extent such
provisions would be required to be deleted or modified in an indenture so
qualified.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, 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 interest 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, premium, if any, or interest 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 such
date; provided that no interest shall accrue on the amount so payable 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, if such amount is
so paid on the next succeeding Business Day.
Section 1.14. Moneys of Different Currencies to Be Segregated.
The Trustee shall segregate all moneys, funds and accounts held by the Trustee
hereunder in one currency from any moneys, funds and accounts held by the
Trustee hereunder in any other currencies, notwithstanding any provision herein
which would otherwise permit the Trustee to commingle such amounts.
Section 1.15. Independence of Covenants. All covenants and
agreements in this Indenture shall be given independent effect so that if a
particular action or condition is not permitted by any such covenant, the fact
that it would be permitted by an exception to, or be otherwise within the
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
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Section 1.16. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2
SECURITY FORMS
Section 2.1. Forms Generally. The Securities of each series
and the interest coupons, if any, to be attached thereto shall be in
substantially such form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any applicable securities
exchange, organizational document, governing instrument or law or as may,
consistently herewith, be determined by the officers executing such Securities
and interest coupons, if any, as evidenced by their execution of the Securities
and interest coupons, if any. If temporary Securities of any series are issued
as permitted by Section 3.4, the form thereof also shall be established as
provided in the preceding sentence. If the forms of Securities and interest
coupons, if any, of any series are established by, or by action taken pursuant
to, a Board Resolution, a copy of the Board Resolution together with an
appropriate record of any such action taken pursuant thereto, including a copy
of the approved form of Securities or interest coupons, if any, shall be
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of such
Securities.
Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities shall have interest coupons attached.
The definitive Securities and interest coupons, if any, may be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner (or, if such Securities are listed on any securities
exchange, any other manner permitted by the rules of such securities exchange),
all as determined by the officers executing such Securities and interest
coupons, if any, as evidenced by their execution of such Securities and interest
coupons, if any.
Section 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
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FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: _____________________________
Authorized Signatory
Section 2.3. Securities in Global Form. If Securities of or
within a series are issuable in whole or in part in global form, any such
Security may provide that it shall represent the aggregate or specified amount
of Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced or increased to reflect exchanges for
certificated securities. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby, shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 3.3 or 3.4.
Subject to the provisions of Section 3.3, Section 3.4, if applicable, and
Section 3.5, 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 Company Order. 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 1.2 hereof and
need not be accompanied by an Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall
apply to any 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 1.2
hereof and need not be accompanied by an Officers' Certificate or 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 paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest on any Registered Security in permanent global
form shall be made to the registered holder thereof.
Section 2.4. Form of Legend for Securities in Global Form. Any
Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form or in such other form as may be
specified in accordance with Section 3.1:
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"THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY."
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in an Officers' Certificate or
(iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title
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 which may be authenticated and delivered under this
Indenture (which limit shall not pertain to Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 8.6 or 11.7 or
any Securities that, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
(3) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method or methods of
determination thereof;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method or methods of calculating such rate
or rates of interest, the date or dates from which such interest shall accrue or
the method or methods by which such date or dates shall be determined, the
Interest Payment Dates on which any such interest shall be payable, the right,
if any, of the Company to defer or extend an Interest
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Payment Date and, with respect to Registered Securities, the Regular Record
Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of, premium, if
any, and interest, if any, on Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and notices
and demands to or upon the Company in respect of the Securities of the series
and this Indenture may be served and where notices to Holders pursuant to
Section 1.6 will be published;
(6) the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in which,
and the other terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other than
as provided in Section 11.3, the manner in which the particular Securities of
such series (if less than all Securities of such series are to be redeemed) are
to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in which,
and the other terms and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than denominations of
$5,000 and any integral multiple thereof, if Bearer Securities, the
denominations in which Securities of the series shall be issuable;
(9) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal of, premium, if any,
and 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
the provisions of Section 3.12;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at the
election of the Company or a Holder, in a currency or currencies (including
currency unit or units) other than that in which such Securities are denominated
or designated to be payable, the currency or currencies
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(including currency unit or units) in which such payments are to be made, the
terms and conditions of such payments and the manner in which the exchange rate
with respect to such payments shall be determined, and the particular provisions
applicable thereto in lieu of the provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if
any, and interest, if any, on the Securities of the series shall be determined
with reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on a currency or currencies (including
currency unit or units) other than that in which the Securities of the series
are denominated or designated to be payable), the index, formula or other method
by which such amounts shall be determined and any special voting or defeasance
provisions in connection therewith;
(12) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which shall be
payable upon declaration of acceleration thereof pursuant to Section 5.2 or the
method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to
whom any interest on any Registered Security of the series shall be payable and
the manner in which, or the Person to whom, any interest on any Bearer
Securities of the series shall be payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or covenants of the Company set forth
in Article 9 pertaining to the Securities of the series;
(16) under what circumstances, if any, and with what
procedures and documentation the Company will pay additional amounts on the
Securities and interest coupons, if any, of that series held by a Person who is
not a U.S. Person (including any modification of the definition of such term) in
respect of taxes, assessments or similar charges withheld or deducted and, if
so, whether the Company will have the option to redeem such Securities rather
than pay such additional amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest coupons),
or both, and any restrictions applicable to the offering, sale, transfer or
delivery of Bearer Securities and, if other than as provided in Section 3.5, the
terms upon which Bearer Securities of a series may be exchanged for Registered
Securities of the same series and vice versa;
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(18) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any,
of the series;
(20) the applicability, if any, to the Securities and interest
coupons, if any, of or within the series of Sections 4.4 and 4.5, or such other
means of defeasance or covenant defeasance as may be specified for the
Securities and interest coupons, if any, of such series, and whether, for the
purpose of such defeasance or covenant defeasance, the term "Government
Obligations" shall include obligations referred to in the definition of such
term which are not obligations of the United States or an agency or
instrumentality of the United States;
(21) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
(22) if the Securities of the series shall be issued in whole
or in part in global form, (i) the Depositary for such global Securities, (ii)
whether beneficial owners of interests in any Securities of the series in global
form may exchange such interests for certificated Securities of such series, to
be registered in the names of or to be held by such beneficial owners or their
nominees and to be of like tenor of any authorized form and denomination, and
(iii) if other than as provided in Section 3.5, the circumstances under which
any such exchange may occur;
(23) any restrictions on the registration, transfer or
exchange of the Securities;
(24) if the Securities of the series may be issued or
delivered (whether upon original issuance or upon exchange of a temporary
Security of such series or otherwise), or any installment of principal or
interest is payable, only upon receipt of certain certificates or other
documents or satisfaction of other conditions in addition to those specified in
this Indenture, the form and terms of such certificates, documents or
conditions;
(25) the terms and conditions of any right to convert or
exchange Securities of the series into or for Equity Securities of the Company
including provisions for the payment of interest on Securities being converted
or exchanged as contemplated by Section 3.7(d) and Section 14.2;
(26) whether the Securities are secured or unsecured, and if
secured, the security and related terms in connection therewith;
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(27) the definition of "Unrestricted Subsidiary" to be used
for such series; and
(28) any other terms of the series including any terms which
may be required by or advisable under United States laws or regulations or
advisable (as determined by the Company) in connection with the marketing of
Securities of the series.
(c) Subject to Section 1.12 and any controlling provision of
the Trust Indenture Act, in the event of any inconsistency between the terms of
this Indenture and the terms applicable to a series of Securities established in
the manner permitted by Section 3.1(b), the (i) Board Resolution, (ii) Officer's
Certificate or (iii) supplemental indenture setting forth such conflicting term
shall prevail.
(d) All Securities of any one series and interest coupons, if
any, appertaining thereto shall be substantially identical except as to
denomination and except as may otherwise be provided (i) by a Board Resolution,
(ii) by action taken pursuant to a Board Resolution and (subject to Section 3.3)
set forth, or determined in the manner provided, in the related Officers'
Certificate or (iii) in an indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
(e) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1(b), any Registered Securities of a series
denominated in Dollars shall be issuable in denominations of U.S. $1,000 and any
integral multiple thereof and any Bearer Securities of a series denominated in
Dollars shall be issuable in the denomination of U.S. $5,000 and any integral
multiple thereof. Securities denominated in a Foreign Currency shall be issuable
in such denominations as are established with respect to such Securities in or
pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer or any Vice President of the Company, and need not
be attested. The signatures of any of
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these officers on the Securities may be manual or facsimile. The interest
coupons, if any, of Bearer Securities shall bear the facsimile signature of the
Chairman of the Board, the President, the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer or any Vice President of the
Company, and need not be attested.
Securities and interest coupons bearing the manual or
facsimile signatures of individuals who were at any time Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to be Officers prior to the authentication and delivery of such
Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any interest coupons appertaining thereto, of any
series executed by the Company to the Trustee for authentication, together with
a Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities to or upon the order of the Company (as set forth in such
Company Order); provided, however, that, in the case of Securities of a series
offered in a Periodic Offering, the Trustee shall authenticate and deliver such
Securities from time to time in accordance with such other procedures
(including, without limitation, the receipt by the Trustee of oral or electronic
instructions from the Company or its duly authorized agents, promptly confirmed
in writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions or one or more
indentures supplemental hereto as permitted by Sections 2.1 and 3.1, 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 section 315(a) through (d) of the Trust
Indenture Act) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating:
(1) if the form or forms of such Securities and any interest
coupons have been established by or pursuant to a Board Resolution as permitted
by Section 2.1, that such forms have been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities and any interest coupons
have been, or, in the case of Securities of a series offered in a Periodic
Offering, will be, established by or pursuant to a Board Resolution as permitted
by Section 3.1, that such terms have been, or, in the case of Securities of a
series offered in a Periodic Offering, will be,
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established in conformity with the provisions of this Indenture, subject, in the
case of Securities offered in a Periodic Offering, to any conditions specified
in such Opinion of Counsel;
(3) if the form or terms of such Securities have been
established in an indenture supplemental hereto, that such supplemental
indenture has been duly authorized, executed and delivered by the Company and,
when duly authorized, executed and delivered by the Trustee, will constitute a
legal, valid and binding obligation enforceable against the Company in
accordance with its terms, subject to (i) bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws of general
applicability relating to or affecting the enforcement of creditors' rights and
to general principles of equity (regardless of whether enforcement is sought in
a proceeding in equity or at law), and (ii) such other reasonable exceptions as
may be specified in such Opinion of Counsel; and
(4) that such Securities, together with any interest coupons
appertaining thereto, when issued by the Company and authenticated and delivered
by the Trustee in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms, subject
to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles (regardless of
whether enforcement is sought in a proceeding in equity or at law) and except
further as enforcement thereof may be limited by (A) requirements that a claim
with respect to any Securities denominated other than in Dollars (or a Foreign
Currency or currency unit judgment in respect of such claim) be converted into
Dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or (B) governmental authority to limit, delay or prohibit the
making of payments in Foreign Currencies or currency units or payments outside
the United States, and (ii) such other reasonable exceptions as may be specified
in such Opinion of Counsel; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of such
Securities have been complied with and that, to the knowledge of the signers of
such certificate, no Event of Default with respect to such Securities shall have
occurred and be continuing.
Notwithstanding that such form or terms have been so
established, the Trustee shall have the right to decline to authenticate such
Securities if, in the opinion of the Trustee (after consultation with counsel),
the issue of such Securities pursuant to this Indenture will materially
adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise or if the Trustee determines that such authentication may
not lawfully be made.
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Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.1 that
the Securities of a series are to be issued in whole or in part in global form,
then the Company shall execute and the Trustee shall, in accordance with this
Section and the Company Order with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and shall
be denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depositary for such Security or Securities in global form or
the nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instruction and (iv) shall bear the
legend set forth in Section 2.4.
Each Depositary designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation. If requested by the Company, the Trustee shall enter into an
agreement with a Depositary governing the respective duties and rights of such
Depositary and the Trustee with regard to Securities issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
pursuant to Section 3.1.
No Security or interest coupon appertaining thereto shall be
entitled to any benefits under this Indenture or be valid or obligatory for any
purpose until such Security has been authenticated by the manual signature of
one of the authorized signatories of the Trustee or an Authenticating Agent.
Such signature upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly
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authenticated and delivered under this Indenture and is entitled to the benefits
of this Indenture. Except as permitted by Section 3.6 or 3.7, the Trustee shall
not authenticate and deliver any Bearer Security unless all appurtenant interest
coupons for interest then matured have been detached and cancelled.
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 3.9 together with a written statement (which need not comply
with Section 1.2 hereof and need not be accompanied by an Officers' Certificate
or 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 not be
entitled to the benefits of this Indenture.
Section 3.4. 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 of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without interest coupons, of the definitive Securities in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and interest
coupons, if any. In the case of Securities of any series, such temporary
Securities may be in global form, representing all or a portion of the
Outstanding Securities of such series.
Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
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 pursuant to Section 9.2 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured interest
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 and of like
tenor; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided, further, that no
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless such delivery shall occur outside the
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United States. 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 except as otherwise specified as
contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange . The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency to be maintained by the Company in accordance with Section 9.2
in a Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby initially appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 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, of any
authorized denominations and of a like aggregate principal amount and tenor and
containing identical terms and provisions.
Bearer Securities (except for any temporary global Bearer
Securities) or any interest coupons appertaining thereto (except for interest
coupons attached to any temporary global Bearer Security) shall be transferable
by delivery.
At the option of the Holder, Registered Securities of any
series (except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations, of a
like aggregate principal amount and tenor and containing identical terms and
provisions, 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
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive. Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at
the option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations, of like aggregate
principal amount and tenor and containing identical terms and conditions, upon
surrender of the Bearer Securities to be exchanged at any such
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office or agency, with all unmatured interest coupons and all matured interest
coupons in default thereto appertaining. If the Holder of a Bearer Security is
unable to produce any such unmatured interest coupon or coupons or matured
interest coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing interest
coupon or coupons, or the surrender of such missing interest coupon or interest
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 any Paying Agent any such missing interest 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 9.2, interest represented by interest coupons shall be payable only upon
presentation and surrender of those interest coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in case any
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series 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 date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the interest coupon relating to
such Interest Payment Date or proposed date of payment, as the case may be (or,
if such interest coupon is so surrendered with such Bearer Security, such
interest coupon shall be returned to the Person so surrendering the Bearer
Security), 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 interest coupon, when
due in accordance with the provisions of this Indenture.
Notwithstanding anything herein to the contrary, the exchange
of Bearer Securities for Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange. Neither the Company, the
Trustee nor the Registrar shall exchange any Bearer Securities for Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchange the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges thereafter, unless and until the Trustee receives a subsequent Company
Order to the contrary. The Company shall deliver copies of such Company Order to
the Registrar.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in certificated
form, a Security in global form
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representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 3.3, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company prior to the resignation of the Depositary and, in any
event, within 90 days after the Company receives such notice or becomes aware of
such ineligibility, the Company's designation of the Depositary pursuant to
Section 3.1(b)(22) shall no longer be effective with respect to the Securities
of such series and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of certificated Securities of
such series of like tenor, shall authenticate and deliver, Securities of such
series of like tenor in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like tenor in global form in exchange for such
Security or Securities in global form.
The Company may at any time in its sole discretion determine
that Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Depositary for such series may surrender
a Security in global form of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are acceptable
to the Company and such Depositary. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities of the same series of like
tenor, of any authorized denomination as requested by such
Person in aggregate principal
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amount equal to and in exchange for such Person's beneficial
interest in the Security in global form; and
(ii) to such Depositary a new Security in global form
of like tenor in a denomination equal to the difference, if
any, between the principal amount of the surrendered Security
in global form and the aggregate principal amount of
certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities
in certificated form, such Security in global form shall be cancelled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Securities to
the Persons in whose names such Securities are so registered.
Whenever any Securities are 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.
All Securities issued upon any registration of transfer or
upon any 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,
the Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Registrar and
the Trustee 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 for any exchange of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration or transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 8.6 or 11.7 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of, or exchange any Securities for a period beginning at the opening of
business 15 days before any selection for redemption of Securities of like tenor
and of the series of which such Security is a part and ending at the close of
business on the earliest date on which the
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relevant notice of redemption is deemed to have been given to all Holders of
Securities of like tenor and of such series to be redeemed; (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.
The foregoing provisions relating to registration, transfer
and exchange may be modified, supplemented or superseded with respect to any
series of Securities by a Board Resolution or in one or more indentures
supplemental hereto.
Section 3.6. Replacement Securities . If a mutilated Security
or a Security with a mutilated interest 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 harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with interest coupons corresponding
to the interest coupons appertaining to the surrendered Security, if such
surrendered Security was a Bearer Security, of the same series and date of
maturity.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or interest 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 interest
coupon has been acquired by a bona fide purchaser, the Company shall execute and
the Trustee shall authenticate and deliver in lieu of any such destroyed, lost
or stolen Security or in exchange for the Security to which a destroyed, lost or
stolen interest coupon appertains (with all appurtenant interest coupons not
destroyed, lost or stolen), a replacement Registered Security, if such Holder's
claim appertains to a Registered Security, or a replacement Bearer Security with
interest coupons corresponding to the interest coupons appertaining to the
destroyed, lost or stolen Bearer Security or the Bearer Security to which such
lost, destroyed or stolen interest coupon appertains, if such Holder's claim
appertains to a Bearer Security, of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
or interest coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security or interest coupon, pay
such Security or interest coupon; provided, however, that payment of principal
of and any premium or interest on
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Bearer Securities shall, except as otherwise provided in Section 9.2, be payable
only at an office or agency located outside the United States and, unless
otherwise specified as contemplated by Section 3.1, any interest on Bearer
Securities shall be payable only upon presentation and surrender of the interest
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee, its agents and
counsel) connected therewith.
Every new Security of any series with its interest coupons, if
any, issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
interest coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its interest coupon, if any, or the destroyed, lost or stolen interest
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 interest coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
interest coupons.
Section 3.7. Payment of Interest; Interest Rights Preserved .
(a) Unless otherwise provided as contemplated by Section 3.1, 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 that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency maintained for such purpose pursuant to Section 9.2; provided, however,
that at the option of the Company, interest on any series of Registered
Securities that bears interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register of Holders of
Securities of such series or (ii) at the expense of the Company, by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the interest coupons for such interest installments as are
evidenced thereby as they mature and (ii) original issue discount, if any, on
Bearer Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise
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instructed the Trustee in writing, provided that any such instruction for
payment in the United States does not cause any Bearer Security to be treated as
a "registration-required obligation" under United States laws and regulations.
The interest, if any, on any temporary Bearer Security shall be paid, as to any
installment of interest evidenced by an interest coupon attached thereto only
upon presentation and surrender of such interest coupon and, as to other
installments of interest, only upon presentation of such Security for notation
thereon of the payment of such interest. If at the time a payment of principal
of or interest, if any, on a Bearer Security or interest coupon shall become
due, the payment of the full amount so payable at the office or offices of all
the Paying Agents outside the United States is illegal or effectively precluded
because of the imposition of exchange controls or other similar restrictions on
the payment of such amount in Dollars, then the Company may instruct the Trustee
in writing to make such payments at a Paying Agent located in the United States,
provided that provision for such payment in the United States would not cause
such Bearer Security to be treated as a "registration-required obligation" under
United States laws and regulations.
(b) Unless otherwise provided as contemplated by Section 3.1,
any interest on Securities of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date in the case of
Registered Securities and upon presentation and surrender of the applicable
interest coupon in accordance with the second paragraph of Section 3.7(a) in the
case of Bearer Securities (herein called "Defaulted Interest"), shall forthwith
cease to be payable to the Holders of Registered Securities on the relevant
Regular Record Date by virtue of their having been such Holders, or to the
Holders of Bearer Securities by virtue of their having presented the applicable
interest coupon on such Interest Payment Date, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in clause (1)
or (2) below:
(1) In the case of Registered Securities, the Company may
elect to make payment of such Defaulted Interest to the Persons in
whose names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
such Registered Security and the date of the proposed payment, and
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause (1) provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days
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prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of such Registered Securities at his or her
address as it appears in the Register, 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
mailed, such Defaulted Interest shall be paid to the Persons in whose
names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2)(x) In the case of Registered Securities, the Company may
make payment of such Defaulted Interest to the Persons in whose names
such Registered Securities (or their respective Predecessor Securities)
are registered at the close of business on a specified date in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Registered 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 (2)(x), such manner of payment shall be deemed
practicable by the Trustee; or (y) unless otherwise provided as
contemplated by Section 3.1, in the case of Bearer Securities, the
Company may make payment of Defaulted Interest on such Bearer
Securities in any lawful manner not inconsistent with the requirements
of any securities exchange on which such Bearer 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 (2)(y), such manner of payment shall be
deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, 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.
(d) In the case of any Registered Security which is converted
or exchanged after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security the principal of (or
premium, if any, on) which shall become due and payable, whether at Stated
Maturity or by declaration of acceleration, call for redemption or otherwise
prior to such Interest Payment Date), interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion or exchange and such interest (whether or not
punctually paid or duly provided for) shall be paid to the
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name that Registered Security (or any one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date, unless
otherwise provided with respect to Securities of that series pursuant to Section
3.1(b).
Section 3.8. Persons Deemed Owners . Unless otherwise provided
as contemplated by Section 3.1, prior to due presentment of any 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, premium, if any, and (subject to Section
3.7) interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Unless otherwise provided as contemplated by Section 3.1, 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 interest coupon as the
absolute owner of such Bearer Security or interest coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or interest coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests. No holder
of any beneficial interest in any Security in global form, held on its behalf by
or through a Depositary, shall have any rights under this Indenture with respect
to such Security in global form, and such Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner of
such Security in global form for all purposes whatsoever. With respect to any
Security in global form, nothing herein shall prevent the Company or 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
(or its nominee), as a Holder, with respect to such Security in global form or
impair, as between such Depositary and owners of beneficial interests in such
Security in global form, the operation of customary practices governing the
exercise of the rights of such Depositary (or its nominee) as Holder of such
Security in global form.
Section 3.9. Cancellation . All Securities and interest
coupons appertaining thereto, if any, surrendered for payment, redemption,
conversion, registration of transfer or exchange or for credit against any
sinking fund payment shall, if
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surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities, together with interest coupons
appertaining thereto, if any, 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, together with interest coupons appertaining
thereto, if any, previously authenticated hereunder which the Company has not
issued and sold, and all Securities and interest coupons so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section 3.9,
except as expressly permitted by this Indenture. All cancelled Securities and
interest coupons held by the Trustee shall be disposed of in accordance with its
customary procedures, and the Trustee shall thereafter deliver to the Company a
certificate with respect to such disposition.
Section 3.10. Computation of Interest . Except as otherwise
specified as contemplated by Section 3.1, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers . The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use and in addition to
the other identification numbers printed on the Securities), and, in such case,
the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
Section 3.12. Currency and Manner of Payment in Respect of
Securities . Unless otherwise specified with respect to any Securities pursuant
to Section 3.1, payment of the principal of, premium, if any, and interest, if
any, on any Security of such series will be made in the currency or currencies
or currency unit or units in which such Security is payable. The provisions of
this Section 3.12 may be modified or superseded pursuant to Section 3.1 with
respect to any Securities.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. Termination of Company's Obligations Under the
Indenture . This Indenture shall upon a Company Request cease to be of further
effect with respect to Securities of or within any series and any interest
coupons appertaining thereto (except as to (i) rights of registration, transfer
or exchange of such Securities, (ii) rights of
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replacement of such Securities which may have been lost, stolen or mutilated as
herein expressly provided for, (iii) rights of holders of Securities to receive
payments of principal thereof and interest thereon, upon the Stated Maturity
thereof (but not upon acceleration), and rights of the Holders to receive
mandatory sinking fund payments, if any, (iv) rights of holders of Securities to
convert or exchange Securities, (v) rights, obligations, duties and immunities
of the Trustee hereunder, (vi) any rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them, and (vii) the obligations of the
Company under Section 9.2) and the Trustee, upon payment of all amounts due it
under Section 6.7, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to such Securities and any interest coupons appertaining thereto when
(1) either
(A) all such Securities previously authenticated and
delivered and all interest coupons appertaining thereto (other
than (i) such interest coupons appertaining to Bearer
Securities surrendered in exchange for Registered Securities
and maturing after such exchange, surrender of which is not
required or has been waived as provided in Section 3.5, (ii)
such Securities and interest coupons which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6, (iii) such interest coupons
appertaining to Bearer Securities called for redemption and
maturing after the relevant Redemption Date, surrender of
which has been waived as provided in Section 11.6 and (iv)
such Securities and interest coupons for whose payment money
in the currency or currencies or currency unit or units in
which such Securities are payable has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 9.3) 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 interest 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) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of
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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 the purpose an amount in
the currency or currencies or currency unit or units in which
the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and
such interest coupons not theretofore delivered to the Trustee
for cancellation, for principal, premium, if any, and
interest, with respect thereto, 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 obligation
of the Company to the Trustee and any predecessor Trustee under Section 6.7, the
obligations of the Company to any Authenticating Agent under Section 6.14 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 4.2,
Section 9.2 and the last paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds . Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the interest coupons
appertaining thereto, if any, 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, premium, if any and any interest for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except as otherwise provided herein and except to
the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Covenant Defeasance . Except as otherwise
specified as contemplated by Section 3.1 for the Securities of any series, the
provisions of Sections 4.4 through 4.9 inclusive, with such modifications
thereto as may be specified pursuant to
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Section 3.1 with respect to any series of Securities, shall be applicable to the
Securities and any interest coupons appertaining thereto.
Section 4.4. Defeasance and Discharge . On and after the date
on which the conditions set forth in Section 4.6 are satisfied with respect to
the Securities of or within any series, the Company shall be deemed to have paid
and been discharged from its obligations with respect to such Securities and any
interest coupons appertaining thereto (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 Securities and any
interest coupons appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Sections 4.7 and 4.9 and the other
Sections of this Indenture referred to in clause (ii) of this Section, and to
have satisfied all its other obligations under such Securities and any interest
coupons appertaining thereto and this Indenture insofar as such Securities and
any interest coupons appertaining thereto are concerned (and the Trustee, upon
payment of all amounts due it under Section 6.7, at the expense of the Company,
shall on a Company Order execute proper instruments acknowledging the same),
except the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of such Securities and any
interest coupons appertaining thereto to receive, solely from the trust funds
described in Section 4.6(a) and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest, if any,
on such Securities or any interest coupons appertaining thereto when such
payments are due; (B) the Company's obligations with respect to such Securities
under Sections 3.4, 3.5, 3.6, 9.2 and 9.3 and with respect to the payment of
additional amounts, if any, payable with respect to such Securities as specified
pursuant to Section 3.1(b)(16); (C) the Company's obligations with respect to a
conversion or exchange of such Securities; (D) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (E) this Article 4. Subject
to compliance with this Article 4, the Company may defease the Securities of any
series and any interest coupons appertaining thereto under this Section 4.4
notwithstanding a prior covenant defeasance (as defined herein) under Section
4.5 with respect to such Securities and any interest coupons appertaining
thereto. Following a defeasance, payment of such Securities may not be
accelerated because of an Event of Default.
Section 4.5. Covenant Defeasance . On and after the date on
which the conditions set forth in Section 4.6 are satisfied with respect to the
Securities of or within any series, (i) the Company shall be released from its
obligations under Sections 7.1 and 9.4 and, if specified pursuant to Section
3.1, its obligations under any other covenant, with respect to such Securities
and any interest coupons appertaining thereto and (ii) the occurrence of any
event specified in Sections 5.1(d) or 5.1(i) (in each case, with respect to any
of the obligations described in clause (i) above) or 5.1(e) shall be deemed not
to be or result in a Default or Event of Default (hereinafter, "covenant
defeasance"), and such Securities and any interest coupons appertaining thereto
shall thereafter be deemed to be
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not "Outstanding" for the purposes of any request, demand, authorization,
direction, notice, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Section 7.1 or 9.4, such other
covenant specified pursuant to Section 3.1, or Sections 5.1(d) or 5.1(i) (in
each case, with respect to any of the obligations described in clause (i) above)
or 5.1(e), but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Securities and any interest coupons appertaining thereto, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 5.1(d), 5.1(e) or 5.1(i) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities and any interest coupons appertaining thereto shall be unaffected
thereby.
Section 4.6. Conditions to Defeasance or Covenant Defeasance .
The following shall be the conditions to application of either Section 4.4 or
Section 4.5 to the then Outstanding Securities of or within a series:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.9 who shall agree to comply with the
provisions of Sections 4.3 through 4.9 inclusive and the last paragraph
of Section 9.3 applicable to the Trustee, for purposes of such sections
also a "Trustee") 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
interest coupons appertaining thereto, (A) money in an amount, or (B)
Government Obligations 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,
money in an amount, or (C) a combination thereof, in an amount
sufficient in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written opinion
with respect thereto delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee)
to pay and discharge, (x) the principal of (premium, if any) and each
installment of interest, if any, on the outstanding Securities and any
interest coupons appertaining thereto on the Stated Maturity of such
principal or installment of interest and (y) any mandatory sinking fund
payments applicable to such Securities 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 interest
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coupons appertaining thereto.
(b) In the case of an election under Section 4.4, 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 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 the Outstanding Securities and any
interest coupons appertaining thereto will not recognize gain or loss
for Federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred.
(c) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities and any interest coupons
appertaining thereto will not recognize gain or loss for Federal income
tax purposes as a result of such deposit and covenant defeasance and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit and covenant defeasance had not occurred.
(d) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Securities, if then listed
on any securities exchange or approved for trading in any automated
quotation system, will not be delisted or disapproved for such trading
as a result of such deposit.
(e) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as subsections
5.1(g) and (h) 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).
(f) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(g) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(h) The Company shall have delivered to the Trustee an
Officers'
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Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 4.4 or the covenant defeasance under Section 4.5 (as the
case may be) have been complied with.
(i) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act of 1940, as amended from time
to time, or such trust shall be registered under such act or exempt
from registration thereunder.
(j) Such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
as contemplated by Section 3.1.
Section 4.7. Deposited Money and Government Obligations to Be
Held in Trust . Subject to the provisions of the last paragraph of Section 9.3,
all money and Government Obligations (or other property as may be provided
pursuant to Section 3.1) (including the proceeds thereof) deposited with the
Trustee pursuant to Section 4.6 in respect of any Securities of any series and
any interest coupons appertaining thereto shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and any
interest coupons appertaining thereto and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any interest coupons appertaining thereto of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, if any, but such
money need not be segregated from other funds except as provided herein and
except to the extent required by law.
Section 4.8. Repayment to Company . Subject to the delivery by
the Company of any written certification required by the last paragraph of this
Section 4.8, the Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
The provisions of the last paragraph of Section 9.3 shall
apply to any money or securities held by the Trustee or any Paying Agent under
this Article 4 that remain unclaimed for two years after the Maturity of any
series of Securities for which money or securities have been deposited pursuant
to Section 4.6(a).
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
4.6 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public
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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 the defeasance or covenant defeasance, as the case may be,
with respect to such Securities.
Section 4.9. Indemnity for Government Obligations . The
Company shall pay, and shall indemnify the Trustee against, any tax, fee or
other charge imposed on or assessed against Government Obligations deposited
pursuant to this Article or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the Outstanding Securities.
Section 4.10. Reinstatement . If the Trustee (or Paying Agent)
is unable to apply any money or Government Obligations in accordance with
Section 4.6 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated, with present and prospective effect, as though no
deposit had occurred pursuant to Section 4.6, until such time as the Trustee (or
Paying Agent) is permitted to apply all such money or Government Obligations in
accordance with Section 4.6; provided, however, that if the Company makes any
payment to the Trustee (or Paying Agent) of principal, premium, if any, or
interest on any Security following the reinstatement of its obligations, the
Trustee (or Paying Agent) shall promptly pay any such amount to the Holders of
the Securities and the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money and Government
Obligations held by the Trustee (or Paying Agent).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. Events of Default . An "Event of Default," with
respect to the Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of interest on any Security of that
series or any interest coupon appertaining thereto or any additional
amount payable with respect to any Security of that series as specified
pursuant to Section 3.1(b)(16) when the same becomes due and payable
and such default continues for a period of 30 days; or
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(b) default in the payment of any installment of the principal
of or any premium on any Security of that series when the same becomes
due and payable at its Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with) or the Securities, and
continuance of such default or breach for a period of 60 days after
there has been given, in the manner provided in Section 1.6, to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least 10% in principal amount of the Outstanding Securities of
the series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(e) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations
constituting, Debt by the Company or any Restricted Subsidiary, or
under any mortgage(s), indenture(s), agreement(s) or instrument(s)
under which there may be issued or by which there may be secured or
evidenced, any Debt of the Company or any Restricted Subsidiary with a
principal amount then outstanding, individually or in the aggregate, in
excess of $25 million, whether such Debt now exists or is hereafter
Incurred, which default or defaults constitute a failure to pay any
portion of the principal or similar amount of such Debt when due and
payable after the expiration of any applicable grace period with
respect thereto or results in such Debt becoming or being declared due
and payable prior to the date on which it would otherwise have become
due and payable; or
(f) a final judgment or final judgments (not subject to
appeal) for the payment of money are entered against the Company or any
Restricted Subsidiary in an aggregate amount in excess of $25 million
by a court or courts of competent jurisdiction, which judgments remain
unstayed, undischarged or unbonded for a period of 60 days after the
entry of such judgment or judgments; or
(g) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Restricted Subsidiary in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any
Restricted Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement,
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adjustment or composition of or in respect of the Company or any
Restricted Subsidiary under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Restricted
Subsidiary or of any substantial part of the property of the Company or
any Restricted Subsidiary, or ordering the winding up or liquidation of
the affairs of the Company or any Restricted Subsidiary, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(h) the commencement by the Company or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company or any Restricted
Subsidiary to the entry of a decree or order for relief in respect of
the Company or any Restricted Subsidiary in an involuntary case or
proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against the Company
or any Restricted Subsidiary or the filing by the Company or any
Restricted Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or state law, or
the consent by the Company or any Restricted Subsidiary to the filing
of such a petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or any Restricted Subsidiary or of any
substantial part of the property of the Company or any Restricted
Subsidiary, or the making by the Company or any Restricted Subsidiary
of an assignment for the benefit of creditors, or the admission by the
Company or any Restricted Subsidiary in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company or any Restricted Subsidiary in furtherance of
any such action; or
(i) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
Section 5.2. Acceleration; Rescission and Annulment . If an
Event of Default with respect to the Securities of any series at the time
Outstanding (other than an Event of Default specified in clause (g) or (h) of
Section 5.1) occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of all of the Outstanding Securities of that
series, by written notice received by the Company (and, if given by the Holders,
received by the Trustee), may declare the principal (or, if the Securities of
that 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)
of and accrued interest, if any, on all the Securities of that series to be due
and payable and upon
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any such declaration such principal (or, in the case of Original Issue Discount
Securities or Indexed Securities, such specified amount) and interest, if any,
shall be immediately due and payable. If an Event of Default specified in clause
(g) or (h) of Section 5.1 with respect to the Securities of any series at the
time Outstanding occurs and is continuing, then the principal (or, if the
Securities of that 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) of and accrued interest, if any, on all the Securities of
that series shall ipso facto be immediately due and payable without any
declaration or act on the part of the Trustee or any Holder of such Securities.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in principal amount of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and any interest thereon at the
rate borne by the Securities of that series,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided therefor in the
Securities of that series, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 5.7.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee . The Company covenants that if
(a) default is made in the payment of any interest on any
Security or interest coupon, if any, when such interest becomes due and
payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities or interest coupons, if any,
the whole amount then due and payable on such Securities for principal,
premium, if any, and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue
principal, premium, if any, and on any overdue interest, at the rate or
rates prescribed therefor in such Securities or interest coupons, if
any, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including all
amounts due the Trustee, its agents and counsel under Section 6.7.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid
and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon the Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Securities,
wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to secure any other proper remedy,
subject, however, to Section 5.8.
Section 5.4. Trustee May File Proofs of Claim . In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect
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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 6.7.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Security or interest coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
of a Security or interest coupon thereof or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or interest coupon in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities . All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.6 Delay or Omission Not Waiver . No delay or
omission by the Trustee or any Holder of any Securities to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or remedy
or constitute a waiver of or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults . The Holders of not less
than a majority in aggregate principal amount of Outstanding Securities of any
series by written notice to the Trustee may waive on behalf of the Holders of
all Securities of such series and any interest coupons appertaining thereto a
past Default or Event of Default with respect to that series and its
consequences except a Default or Event of Default (i) in the payment of the
principal of, premium, if any, or interest on any Security of such series or any
interest coupon appertaining thereto or (ii) in respect of a covenant or
provision hereof which pursuant to Article 8 cannot be amended or modified
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
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deemed to have been cured, for every purpose of this Indenture but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 5.8. Control by Majority . The Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities of
each series affected (with each such series voting as a class) 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 it
with respect to Securities of that series; provided, however, that (i) the
Trustee may refuse to follow any direction that conflicts with any governmental
rule or law or this Indenture, (ii) the Trustee may refuse to follow any
direction that is unduly prejudicial to the rights of the Holders of Securities
of such series not consenting, or that would in the good faith judgment of the
Trustee have a substantial likelihood of involving the Trustee in personal
liability without adequate indemnity having been offered therefor and (iii)
subject to Section 6.1, the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders . No Holder of any
Security of any series or any interest coupons appertaining thereto 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:
(a) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(b) the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series have made a written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense to be, or which may be, incurred by the Trustee in pursuing the
remedy;
(d) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series
have not given to the Trustee a direction inconsistent with such
written request.
No one or more Holders of Securities of a series shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect,
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disturb or prejudice the rights of any other of
such Holders, 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 of such
Holders.
Section 5.10. Rights of Holders to Receive Payment .
Notwithstanding any other provision of this Indenture, but subject to Section
9.2, the right of any Holder of a Security or interest coupon to receive payment
of principal of, premium, if any, and, subject to Sections 3.5 and 3.7, interest
on the Security, on or after the respective due dates expressed in the Security
(or, in case of redemption, on the Redemption Dates), the right of any Holder of
an interest coupon to receive payment of interest due as provided in such
interest coupon, or to bring suit for the enforcement of any such payment on or
after such respective dates, and the right, if any, to convert or exchange such
Security in accordance with Article 14, shall not be impaired or affected
without the consent of such Holder.
Section 5.11. Application of Money Collected . If the Trustee
collects any money pursuant to this Article, it shall pay out the money 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, premium, if any, or
interest, upon presentation of the Securities and interest coupons, if any, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in
respect of which or for the benefit of which such money has been
collected for amounts due and unpaid on such Securities for principal
of, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal, premium, if any, and interest, respectively;
and
Third: the balance, if any, to the Company.
The Holders of each series of Securities denominated in ECU,
any other currency unit or a Foreign Currency and any matured interest coupons
relating thereto shall be entitled to receive a ratable portion of the amount
determined by the Trustee by converting the principal amount Outstanding of such
series of Securities and matured but unpaid interest on such series of
Securities in the currency in which such series of Securities is denominated
into Dollars at the Market Exchange Rate as of the date of declaration of
acceleration of Maturity of the Securities (or, if the default consists of a
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failure to pay the principal of such Securities on the Stated Maturity thereof,
as of the Stated Maturity date).
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15 days before such
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies . If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative . Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. Undertaking for Costs . In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, however,
that neither this Section 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, the Trustee or any Holder, or group of
Holders, holding in the aggregate at least 10% in principal amount of the
Outstanding Securities or in any suit instituted by any Holder for the
enforcement of principal of (and premium, if any) or interest on any Security on
or after the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
Section 5.15. Waiver of Stay, Extension or Usury Laws . The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon,
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or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury or other law wherever enacted, now or at
any time hereafter in force, which would prohibit or forgive the Company from
paying all or any portion of the principal, of, and premium, if any, or interest
on the Securities contemplated herein or in the Securities or 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 6
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities . The duties
and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, 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. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.2. Notice of Defaults . If a Default occurs
hereunder with respect to Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such Default as and to the extent
provided by the Trust Indenture Act; provided, however, that in the case of any
Default of the character specified in Section 5.1(d) 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 6.3. Certain Rights of Trustee . Subject to the
provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
and any
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resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, 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;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) except with respect to Section 9.1, the Trustee shall have
no duty to inquire as to the performance by the Company of the
covenants set forth in Article 9 beyond its good faith review of any
certificates or other notices received by it from the Company.
Section 6.4. Not Responsible for Recitals or Issuance of
Securities . The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The
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Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. 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 6.5. May Hold Securities . The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to the definition of
"Outstanding" set forth in Section 1.1 and subject to Sections 6.8 and 6.13, may
otherwise deal with the Company and any other obligor upon the Securities with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
Section 6.6. 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 or by the provisions of this Indenture. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 6.7. Compensation and Reimbursement . The Company
agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) 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
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
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.
Section 6.8. Conflicting Interests . If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. To the extent permitted by such Act, the
Trustee shall not be deemed to have a conflicting interest by virtue of
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being a trustee under this Indenture with respect to Securities of more than one
series or a trustee under (i) the Indenture dated as of May 15, 1997 between the
Company and the Trustee relating to the Company's 11.30% Senior Discount Notes
Due 2007, (ii) the Indenture dated as of December 1, 1996 by and among AWNA, the
Company, as guarantor, the Subsidiary Guarantors named therein and the Trustee
relating to AWNA's 10 1/4% Senior Subordinated Notes due 2006, (iii) the
Indenture dated as of____________________________________ , 1997 between the
Company and the Trustee relating to the Company's senior subordinated debt
securities, (iv) the Indenture dated as of________________________________ ,
1997 by and among AWNA, the Company, as guarantor, the Subsidiary Guarantors
named therein and the Trustee relating to AWNA's senior debt securities and (v)
the Indenture dated as of_____________________________ , 1997 by and among AWNA,
the Company, as guarantor, the Subsidiary Guarantors named therein and the
Trustee relating to AWNA's senior subordinated debt securities.
Section 6.9. Corporate Trustee Required; Eligibility . There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $25,000,000 and has its Corporate Trust Office
located in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person 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, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of
Successor . No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
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 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
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The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 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
(b) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(c) 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, (1) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (2) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
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) and shall comply with the
applicable requirements of Section 6.11. 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 the applicable requirements of Section
6.11, 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 required by
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Section 6.11, 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. 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 all Holders
of Securities of such series in the manner provided in Section 1.6. 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 6.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on 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.
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
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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 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.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all 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.
Section 6.13. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon 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).
Section 6.14. Appointment of Authenticating Agent. 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 issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and
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obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $25,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and 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 Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. 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.
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The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
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
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
___________________________,
As Trustee
By: _______________________,
As Authenticating Agent
By: _________________________
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted. The Company (a) shall not, and shall not permit any Restricted
Subsidiary to, consolidate with or merge into, any Person, in the case of a
Restricted Subsidiary, in a transaction in which such Restricted Subsidiary
remains a Restricted Subsidiary, unless such Restricted Subsidiary consolidates
with or merges into a Wholly Owned Restricted Subsidiary; (b) shall not permit
any Person other than a Wholly Owned Restricted Subsidiary to consolidate with
or merge into (i) the Company or (ii) any Restricted Subsidiary in a transaction
in which such Restricted Subsidiary remains a Restricted Subsidiary; (c) shall
not, directly or indirectly, in one or a series of transactions, transfer,
convey, sell, lease or otherwise dispose of all or substantially all of the
properties and assets of the Company and its Subsidiaries on a consolidated
basis; and (d) shall not, and shall not permit any Restricted Subsidiary to, in
one or a series of transactions, acquire Capital Stock or other ownership
interests in any other Person such that such other Person becomes a Restricted
Subsidiary; unless in any such transaction (or series) contemplated by Clause
(a), (b), (c) or (d) above:
(a) in case the Company shall consolidate with or merge into
another Person or shall directly or indirectly, in one or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety. The Person formed
by such consolidation or into which the Company is merged or the Person which
acquires by transfer, conveyance, sale, lease or other disposition all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis (for purposes of this Article 7, a
"Successor Company") shall be a corporation, partnership, limited liability
company or trust, shall be organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia and
shall expressly assume by an indenture supplemental hereto executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on all
the Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
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(b) immediately after giving effect to such consolidation,
merger, sale, transfer, lease or other disposition, no Default or Event
of Default exists; and
(c) with respect to any series of Securities, the Company
satisfies such other conditions, if any, established with respect to
such series of Securities pursuant to and in accordance with Section
3.1.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed consolidation, merger, sale, transfer, lease or other disposition and
such supplemental indenture comply with this Indenture and that all conditions
precedent to the consummation of such transaction under this Section 7.1 have
been met.
Section 7.2 Successor Substituted
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company and its Subsidiaries on a consolidated basis, in each case in accordance
with Section 7.1, the Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
and under the Securities and any interest coupons appertaining thereto with the
same effect as if such Successor Company had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities and any interest coupons appertaining thereto.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into indentures supplemental hereto, in
form reasonably satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants and
obligations of the Company herein and in the Securities and any
interest coupons appertaining thereto; or
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(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Securities; or
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance or administration of Bearer Securities (including, without
limitation, to provide that Bearer Securities may be registrable as to
principal only) or to facilitate the issuance or administration of
Securities in global form; or
(e) to change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, 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
(f) to secure any series of Securities; or
(g) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11; or
(i) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of
the States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on Bearer Securities or interest
coupons, if any; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such action
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shall not adversely affect in any material respect the interests of the
Holders of Securities of any series; or
(k) to make provision not adverse to the Holders of
Outstanding Securities of any series with respect to any conversion or
exchange rights of Holders pursuant to the requirements of Article 14,
including providing for the conversion or exchange of the Securities
into any Equity Securities of the Company; or
(l) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act or under
any similar federal statute subsequently enacted, and to add to this
Indenture such other provisions as may be expressly required under the
Trust Indenture Act.
Section 8.2. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Company and the Trustee may enter into an indenture or indentures supplemental
hereto to add any provisions to or to change in any manner or eliminate any
provisions of this Indenture or of any other indenture supplemental hereto or to
modify in any manner the rights of the Holders of Securities of such series;
provided, however, that without the consent of the Holder of each Outstanding
Security affected thereby, an amendment under this Section may not:
(a) change the Stated Maturity of the principal of, or
premium, if any, on, or any installment of principal of or premium, if
any, or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the manner in which the amount of any
principal thereof or premium, if any, or interest thereon is determined
or reduce the amount of the principal of any Original Issue Discount
Security or Indexed Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or change the currency or currency unit in which any Securities or
any premium or the 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, on or after the
Redemption Date);
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults
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hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 13.4 for quorum or voting;
(c) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.2;
(d) make any change that adversely affects any right to
convert or exchange any Security to which the provisions of Article 14
are applicable or, except as provided in this Indenture, decrease the
conversion or exchange rate or increase the conversion or exchange
price of any such Security; or
(e) make any change in this Section 8.2, Section 5.7 or
Section 9.6 except to increase any percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
with the consent of the Holders of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder of a Security or coupon with respect
to changes in the references to "the Trustee" and concomitant changes
in this Section and Section 9.6 or the deletion of this proviso, in
accordance with the requirements of Sections 6.11 and 8.1(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2, Section 5.7 or
Section 9.6 for the Holders to consent to the particular form of any proposed
supplemental indenture, but it is sufficient if they consent to the substance
thereof;
Section 8.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities of one or more series shall be set
forth in a supplemental indenture that complies with the Trust Indenture Act as
then in effect.
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and 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.
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Section 8.5. 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 and of any
interest coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any interest coupons, 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 indenture. If the Company shall so determine, new Securities
including any interest coupons of any series so modified as to conform, in the
opinion of 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 including any interest coupons of such
series.
Section 8.7. Notice of Supplemental Indentures. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 8.2, the Company shall give notice thereof
to the Holders of each Outstanding Security affected, in the manner provided for
in Section 1.6, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
ARTICLE 9
COVENANTS
Section 9.1. Payment of Principal, Premium, if any, and
Interest. The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of,
premium, if any, and interest, together with additional amounts, if any, on the
Securities of that series in accordance with the terms of the Securities of such
series, any interest coupons appertaining thereto and this Indenture; provided,
however, that amounts properly withheld under the Internal Revenue Code of 1986,
as amended, by any Person from a payment to any Holder of Securities, after
having requested such Holder to provide applicable information that would allow
such Person to make such payment without withholding, shall be considered as
having been paid by the Company to such Holder for purposes of this Indenture.
An installment of principal, premium, if any, or interest shall be considered
paid on the date it is due if there shall have been sent to the Trustee or
Paying Agent by wire transfer, or if the Trustee or Paying Agent otherwise
holds, on that date money designated for and sufficient to pay the installment.
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Section 9.2. Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are issued
as Registered Securities, the Company will maintain in each Place of Payment for
that 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 and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. Unless otherwise specified as contemplated by
Section 3.1, if Securities of a series are issuable as Bearer Securities, the
Company will maintain, (i) subject to any laws or regulations applicable
thereto, an office or agency in a Place of Payment for that series which is
located outside the United States where Securities of that series and related
interest coupons may be presented and surrendered for payment; provided,
however, that if the Securities of that series are listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited, the
Luxembourg Stock Exchange or any other 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 London, Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Securities of that series are listed on such exchange, and (ii)
subject to any laws or regulations applicable thereto, an office or agency in a
Place of Payment for that series which is located outside the United States,
where Securities of that series may be surrendered for exchange 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 any
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified as contemplated by Section 3.1, 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, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or interest coupon for payment, even if the payment would be credited
to an account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
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
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for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the
Company may also from time to time designate one or more other offices or
agencies where the Securities (including any interest coupons, if any) of one or
more series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities (including any interest coupons, if any) 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 as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be Held in
Trust; Unclaimed Money. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities and any interest coupons
appertaining thereto, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing 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 interest coupons appertaining thereto, it will,
prior to each due date of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, 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 for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent;
(b) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities of that series in trust
for the benefit of the Persons
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entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(c) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal, premium, if any, or interest on the
Securities of that series; and
(d) 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 terms set forth in this Indenture; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of any principal of or
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium, if any, 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
and interest coupon, if any, 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 in the name and at the expense of the Company cause to be published once, in
an Authorized Newspaper in each Place of Payment with respect to such series, or
cause to be mailed to such Holder, 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.
Section 9.4. Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall prevent
the abandonment or termination of any right or franchise of the Company if it
shall be determined that such abandonment or termination is desirable in the
conduct of the business of the Company.
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Section 9.5. Annual Review Certificate. The Company covenants
and agrees to deliver to the Trustee, within 90 days after the end of each
fiscal year of the Company, a certificate from the principal executive officer,
principal financial officer or principal accounting officer of the Company
stating that a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her supervision and
to the best of his or her knowledge, based on such review, the Company has
fulfilled all of its obligations under this Indenture throughout such year, or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to him or her and the nature and status
thereof. For purposes of this Section 9.5, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
Section 9.6. Waiver of Certain Covenants. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company may, with respect to the Securities of any series, omit in any
particular instance to comply with any term, provision or condition set forth in
any covenant provided pursuant to Section 3.1(b)(15), 8.1(b) or 8.1(g) for the
benefit of the Holders of such series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Securities
of such series shall, by act of such Holders in accordance with Section 1.4,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision 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 term, provision or condition shall
remain in full force and effect.
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1. Company to Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date for any series, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Registered Securities of
such series as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content for any or all series as of a date not more than 15
days prior to the time such list is furnished;
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excluding from any such list names and addresses possessed by the Trustee in its
capacity as Registrar.
Section 10.2. Preservation of Information, Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the
names and addresses of Holders of Registered Securities contained in the most
recent list furnished to the Trustee as provided in Section 10.1 and the names
and addresses of Holders of Registered Securities received by the Trustee in its
capacity as Registrar. The Trustee may destroy any list furnished to it as
provided in Section 10.1 upon receipt of a new list so furnished.
(b) The rights of Holders of Securities to communicate with
other Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided in the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons
appertaining thereto, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any agent of either
of them shall be held accountable by reason of the disclosure of information as
to the names and addresses of the Holders of Securities made pursuant to the
Trust Indenture Act.
Section 10.3. Reports by Trustee. (a) The Trustee shall
transmit to Holders of Securities such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted no later than July 15 in each
calendar year, commencing with the first July 15 after the first issuance of
Securities under this Indenture.
(c) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each stock
exchange upon which the Securities of any series may then be listed and also
with the Commission. The Company will notify the Trustee whenever the Securities
of any series are listed on any stock exchange.
Section 10.4. Reports by the Company. The Company shall file
with the Trustee and the Commission, and transmit to the Holders, such
information, documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such information, documents or
reports required to be filed with the Commission
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pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission. Notwithstanding anything contrary herein, the Trustee shall
have no duty to review such documents for purposes of determining compliance
with any provisions of this Indenture.
ARTICLE 11
REDEMPTION
Section 11.1. Applicability of Article. Securities (including
interest coupons, if any) of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities, including interest coupons, if
any, that, at the time of such election, may be redeemed at the option of the
Company, shall be evidenced by a Board Resolution. In the case of any such
redemption at the election of the Company of less than all the Securities or
interest coupons, if any, of any series, the Company shall, at least 45 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, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 11.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including interest coupons, if any) of a series with the same terms
are to be redeemed, the Trustee, not more than 45 days prior to the Redemption
Date, shall select the Securities of the series to be redeemed in such manner as
the Trustee shall deem fair and appropriate. The Trustee shall make the
selection from Securities of the series that are Outstanding and that have not
previously been called for redemption and may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities, including interest coupons, if any, of that series or any integral
multiple thereof) of the principal amount of Securities, including interest
coupons, if any, of such series of a denomination larger than the minimum
authorized denomination for Securities of that series, provided that the
unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. The Trustee shall promptly notify the Company
in
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writing of the Securities selected by the Trustee for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. If the Company shall so direct, Securities registered in
the name of the Company or any Affiliate or any Subsidiary thereof shall not be
included in the Securities selected for redemption.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
interest coupons, if any) shall relate, in the case of any Securities (including
interest coupons, if any) redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities (including interest coupons,
if any) which has been or is to be redeemed.
Section 11.4. Notice of Redemption. Unless otherwise specified
as contemplated by Section 3.1, notice of redemption shall be given in the
manner provided in Section 1.6 not less than 30 days nor more than 60 days prior
to the Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of a series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Security or
Securities to be redeemed;
(d) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all interest coupons
appertaining thereto, if any, maturing on or after the Redemption Date,
are to be surrendered for payment of the Redemption Price;
(e) that Securities of the series called for redemption and
all unmatured interest coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption Price;
(f) that, on the Redemption Date, the Redemption Price 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;
(g) that the redemption is from a sinking fund, if such is the
case;
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all interest
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coupons maturing subsequent to the Redemption Date or the amount of any
such missing interest coupon or interest coupons will be deducted from
the Redemption Price, unless security or indemnity satisfactory to the
Company, the Trustee and any Paying Agent is furnished;
(i) the CUSIP number, if any, of the Securities;
(j) if applicable, the conversion or exchange price, the date
on which the right to convert or exchange the Securities (or portions
thereof to be redeemed) will terminate and the place or places where
such Securities may be surrendered for conversion or exchange; and
(k) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed 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 11.5. Deposit of Redemption Price. On or 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 9.3) an amount of money in the currency or
currencies (including currency unit or units) in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an Interest
Payment Date) interest accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any redemption
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting of an amount
equal to the then applicable Redemption Price for such Securities against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 11.6. 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, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the interest coupons for any such
interest appertaining to any Bearer Security so to be redeemed, except to the
extent provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including interest
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coupons, if any, for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest 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 and its possessions (except as otherwise provided in Section 9.2)
and, unless otherwise specified as contemplated by Section 3.1, only upon
presentation and surrender of interest coupons for such interest; and provided,
further, that, unless otherwise specified as contemplated by Section 3.1,
installments of interest on Registered Securities that are due and payable on
Interest Payment Dates that are 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 Regular
Record Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the Redemption
Date, such Bearer Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing interest coupons, or the
surrender of such missing interest coupon or interest 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 Bearer Security shall surrender to
the Trustee or any Paying Agent any such missing interest 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 interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest 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 prescribed
therefor in the Security.
Section 11.7. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any 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 his or her attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of that Security, without service charge, a new Security or Securities of
the same series, having the same form, terms and Stated Maturity, in any
authorized denomination equal in aggregate principal amount to the unredeemed
portion of the principal amount of the Security surrendered.
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ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. 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 12.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured interest coupons
appertaining thereto and (ii) may apply as a credit Securities of a series which
have been (x) redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, (y) converted or
exchanged pursuant to Article 14 or (z) previously delivered to the Trustee and
cancelled without reissuance pursuant to Section 3.9, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund. Not
less than 45 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 and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 12.2 and stating the basis for such credit and that such Securities have
not been previously so credited, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in
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the manner specified in Section 11.3 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 11.4. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in
Sections 11.6 and 11.7.
ARTICLE 13
MEETINGS OF HOLDERS OF SECURITIES
Section 13.1. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any 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, election, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 13.2. 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 13.1, to be held at such time and at such
place in The City of New York or in such other place as may be acceptable to the
Company. Notice of every meeting of Holders of Securities, 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 in Section 1.6,
not less than 20 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 shall have requested the Trustee to call a meeting of the Holders of
Securities of any series for any purpose specified in Section 13.1, 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 20 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company may determine the time and the place in The City of New York or such
other place as may be acceptable to the Company for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in paragraph
(a) of this Section 13.2.
Section 13.3. 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 (a) a Holder of one or more Outstanding Securities of such series, or
(b) 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 shall be the Persons 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.
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Section 13.4. 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 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
after the time appointed for any such meeting, 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 the
reconvening of any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days; at the reconvening of any
meeting adjourned or further adjourned for lack of a quorum, the persons
entitled to vote 25% in aggregate principal amount of the then Outstanding
Securities of the relevant series shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
13.2(b), 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.
Except as limited by the proviso to Section 8.2, 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 a majority in principal amount of the Outstanding Securities of that
series, provided, however, that, except as limited by the proviso to Section
8.2, 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 such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
13.4 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 Sections
13.4, 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
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percentage in principal amount of all Outstanding Securities affected thereby,
or of the Holders of such series and one or more additional series:
(1) there shall be no minimum quorum requirement for such
meeting and
(2) 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 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of any 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 1.4 and the appointment of any proxy shall be provided in the manner
specified in Section 1.4 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 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 1.4 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of the
meeting, unless the meeting shall have been called by the Company as provided in
Section 13.2(b), in which case the Company 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 U.S. $5,000 principal amount of
Securities held or represented by him or her; 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 or proxy.
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(d) Any meeting of Holders of Securities of a series duly
called pursuant to Section 13.2 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 13.6. 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 held or represented by them. The permanent chairman of
the meeting shall appoint an inspector 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 its verified written reports in duplicate of all
votes cast at the meeting. A record of the proceedings of each meeting of
Holders of Securities shall be prepared by the applicable secretary of the
meeting and there shall be attached to said record the original report of the
inspector 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
13.2 and, if applicable, Section 13.4. At least two copies of such record shall
be signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one copy thereof shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE 14
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1. Applicability of Article. (a) The provisions of
this Article 14 shall be applicable to the Securities of any series which are
convertible or exchangeable into Equity Securities of the Company, and to the
issuance of such Equity Securities upon the conversion or exchange of such
Securities, except as otherwise specified as contemplated by Section 3.1 for the
Securities of such series.
(b) The term "Equity Securities" shall mean all or any of the
following, authorized from time to time: (i) the Company's Common Stock, $.01
par value (the "Common Stock"), (ii) the Company's Preferred Stock, $.10 par
value (the "Preferred Stock"), and (iii) any other equity securities of the
Company.
Section 14.2. Exercise of Conversion or Exchange Privilege.
(a) In order to exercise a conversion or exchange privilege, the Holder of a
Security of a series with
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such privilege shall surrender such Security, together, in the case of any
Bearer Security, with all unmatured interest coupons and any matured interest
coupons in default appertaining thereto, to the Company at the office or agency
maintained for that purpose pursuant to Section 9.2, accompanied by written
notice to the Company that the Holder elects to convert or exchange such
Security or a specified portion thereof. Such notice shall also state, if
different from the name and address of such Holder, the name or names (with
address) in which the certificate or certificates for Equity Securities which
shall be issuable on such conversion or exchange shall be issued. Registered
Securities surrendered for conversion or exchange shall (if so required by the
Company or the Trustee) be duly endorsed by or accompanied by instruments of
transfer in forms satisfactory to the Company and the Trustee duly executed by
the registered Holder or its attorney duly authorized in writing.
(b) As promptly as practicable after the receipt of such
notice and of any payment required pursuant to a Board Resolution establishing
the terms of any series of Securities and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto setting forth the terms of such
series of Security, and the surrender of such Security in accordance with such
reasonable regulations as the Company may prescribe, the Company shall issue and
shall deliver, at the office or agency at which such Security is surrendered, to
such Holder or on its written order, a certificate or certificates for the
number of Equity Securities issuable upon the conversion or exchange of such
Security (or specified portion thereof), in accordance with the provisions of
such Board Resolution, Officers' Certificate or supplemental indenture, and cash
as provided therein in respect of any fractional share of such Equity Security
otherwise issuable upon such conversion or exchange.
(c) Such conversion or exchange shall be deemed to have been
effected immediately prior to the close of business on the date on which such
notice and such payment, if required, shall have been received in proper order
for conversion or exchange by the Company and such Security shall have been
surrendered as aforesaid and at such time the rights of the Holder of such
Security as such Security Holder shall cease and the person or persons in whose
name or names any certificate or certificates for Equity Securities of the
Company shall be issuable upon such conversion or exchange shall be deemed to
have become the Holder or Holders of record of the Equity Securities represented
thereby. Except as set forth above and subject to paragraph (d) of Section 3.7,
no payment or adjustment shall be made upon any conversion or exchange on
account of any interest accrued on the Securities surrendered for conversion or
exchange, or on account of any dividends on the Equity Securities of the Company
issued upon such conversion or exchange if the record date for the payment of
such dividends occurs prior to or on the date on which such conversion or
exchange shall be deemed to have been effected.
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In the case of any Security which is converted or exchanged in
part only, upon such conversion or exchange the Company shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof,
at the expense of the Company, a new Security or Securities of the same series,
of authorized denominations, in aggregate principal amount equal to the
unconverted or unexchanged portion of such Security.
Section 14.3. No Fractional Equity Securities. No fractional
Equity Security of the Company shall be issued upon conversions or exchanges of
Securities of any series. If more than one Security shall be surrendered for
conversion or exchange at one time by the same Holder, the number of full shares
of the Equity Security which shall be issuable upon conversion or exchange shall
be computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted hereby) so surrendered. If,
except for the provisions of this Section 14.3, any Holder of a Security or
Securities would be entitled to a fractional share of any Equity Security of the
Company upon the conversion or exchange of such Security or Securities, or
specified portions thereof, the Company shall pay to such Holder an amount in
cash equal to the current market value of such fractional share computed, (i) if
such Equity Security is listed or admitted to unlisted trading privileges on a
national securities exchange, on the basis of the last reported sale price
regular way on the principal exchange where such Equity Security is listed or
admitted, on the last trading day prior to the date of conversion or exchange
upon which such a sale shall have been effected, (ii) if such Equity Security is
not at the time so listed or admitted on a national securities exchange but is
quoted on the National Market System of the National Association of Securities
Dealers, Inc. ("NASDAQ"), on the basis of the average of the last bid and asked
prices of such Equity Security on NASDAQ on the last trading day prior to the
date of conversion or exchange, (iii) if such Equity Security is not at the time
so listed or admitted to unlisted trading privileges on a national securities
exchange or quoted on NASDAQ, on the basis of the average of the last bid and
asked prices of such Equity Security in the over-the-counter market, on the last
trading day prior to the date of conversion or exchange, as reported by the
National Quotation Bureau Incorporated or similar organization if the National
Quotation Bureau Incorporated is no longer reporting such information, or (iv)
in accordance with the terms of the supplemental indenture or Board Resolutions
setting the terms of the Securities of such series. For purposes of this
Section, "trading day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday other than any day on which the applicable Equity Security is not traded
or quoted on a national securities exchange, or if the applicable Equity
Security is not traded or quoted on a national securities exchange, on NASDAQ or
the principal exchange or market on which the applicable Equity Security is
traded or quoted.
Section 14.4. Adjustment of Conversion or Exchange Price;
Consolidation or Merger. The conversion or exchange price of Securities of any
series
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that is convertible or exchangeable into an Equity Security of the Company shall
be adjusted for any stock dividends, stock splits, reclassifications,
combinations or similar transactions, and the securities, assets or other
property into or for which such Securities may be converted or exchanged as a
result of any consolidation, merger, combination or similar transaction shall be
determined, in accordance with the terms of the supplemental indenture or Board
Resolutions setting the terms of the Securities of such series.
Whenever the conversion or exchange price is adjusted, the
Company shall compute the adjusted conversion or exchange price in accordance
with the terms of the applicable Board Resolution or supplemental indenture and
shall prepare an Officers' Certificate setting forth the adjusted conversion or
exchange price and showing in reasonable detail the facts upon which such
adjustment is based. Whenever the securities, assets or other property into or
for which Securities of any series may be converted or exchanged are changed as
a result of any consolidation, merger or similar transaction, the Company shall
determine the nature and amount of such securities, assets or other property in
accordance with the terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officer's Certificate describing such securities,
assets or other property and stating the amount of such securities, assets or
other property into or for which such Securities have become convertible or
exchangeable. Such certificates shall forthwith be filed at each office or
agency maintained for the purpose of conversion or exchange of Securities
pursuant to Section 9.2 and, if different, with the Trustee. The Company shall
forthwith cause a notice setting forth the adjusted conversion or exchange price
or describing such securities, assets or other property, as applicable, to be
mailed, first class postage prepaid, to each Holder of Registered Securities of
such series at its address appearing on the Register and to any conversion or
exchange agent other than the Trustee and shall give notice to Holders of Bearer
Securities as provided in Section 1.6.
Section 14.5. Notice of Certain Corporate Actions. If any
series of Securities which are directly or indirectly convertible or
exchangeable for any Equity Securities are Outstanding, in case:
(a) the Company shall declare a dividend (or any other
distribution) on any class of such Equity Securities payable otherwise than in
cash out of its retained earnings; or
(b) the Company shall authorize the granting to the holders of
any class of such Equity Securities of rights, options or warrants to subscribe
for or purchase any shares of capital stock of any class or of any other rights;
or
(c) of any reclassification of any class of such Equity
Securities or of the sale of all or substantially all of the assets of the
Company; or
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(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall cause to be filed with the Trustee, and shall cause to be
mailed to all Holders at their addresses as they shall appear in the Register
and shall give notice to Holders of Bearer Securities as provided in Section
1.6., at least 15 days (or 10 days in any case specified in clause (a) or (b)
above) prior to the applicable record date hereinafter specified, a notice
stating (i) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants, or, if a record is not to
be taken, the date as of which the Holders of such Equity Securities of record
to be entitled to such dividend, distribution, rights, options or warrants are
to be determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or winding
up is expected to become effective, and the date as of which it is expected that
holders of such Equity Securities of record shall be entitled to exchange such
Equity Securities for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up. If at any time the Trustee shall not be the
conversion or exchange agent, a copy of such notice shall also forthwith be
filed by the Company with the Trustee.
Section 14.6. Reservation of Equity Securities. The Company
shall at all times reserve and keep available, free from preemptive rights, out
of its authorized but unissued Equity Securities, for the purpose of effecting
the conversion or exchange of Securities, the full number of Equity Securities
of the Company then issuable upon the conversion or exchange of all Outstanding
Securities of any series that has conversion or exchange rights.
Section 14.7. Payment of Certain Taxes Upon Conversion or
Exchange. The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of its Equity Securities on conversion or exchange of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of its Equity Securities in a name other than that of the Holder of
the Security or Securities to be converted or exchanged, and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
Section 14.8. Duties of Trustee Regarding Conversion or
Exchange. Neither the Trustee nor any conversion or exchange agent shall at any
time be under any duty or responsibility to any Holder of Securities of any
series that is convertible or exchangeable into Equity Securities of the Company
to determine whether any facts exist which may require any adjustment of the
conversion or exchange price, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method
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employed, whether herein or in any supplemental indenture, any resolutions of
the Board of Directors or written instrument executed by one or more officers of
the Company provided to be employed in making the same. Neither the Trustee nor
any conversion or exchange agent shall be accountable with respect to the
validity or value (or the kind or amount) of any Equity Securities of the
Company, or of any securities or property, which may at any time be issued or
delivered upon the conversion or exchange of any Securities and neither the
Trustee nor any conversion or exchange agent makes any representation with
respect thereto. Subject to the provisions of Section 6.1, neither the Trustee
nor any conversion or exchange agent shall be responsible for any failure of the
Company to issue, transfer or deliver any of its Equity Securities or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion or exchange or to comply with any of the covenants
of the Company contained in this Article 14 or in the applicable supplemental
indenture, resolutions of the Board of Directors or written instrument executed
by one or more duly authorized officers of the Company.
Section 14.9. Repayment of Certain Funds Upon Conversion or
Exchange. Any funds which at any time have been deposited by the Company or on
its behalf with the Trustee or any Paying Agent for the purpose of paying the
principal of, and premium, if any, and interest, if any, on any of the
Securities (including funds deposited for any sinking fund referred to in
Article 12 hereof) and which shall not be required for such purposes because of
the conversion or exchange of such Securities as provided in this Article 14
shall after such conversion or exchange be repaid to the Company by the Trustee
upon the Company's written request by Company Request.
ARTICLE 15
JURISDICTION AND CONSENT TO SERVICE OF PROCESS
Section 15.1. Jurisdiction and Consent to Service of Process.
(a) The Company hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or Federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to the Securities, this Indenture, or for
recognition or enforcement of any judgment, and the Company hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. The Company agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Article 15 shall affect any right that any
Holder or the Trustee may
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otherwise have to bring any action or proceeding relating to the Securities,
this Indenture against the Company or its properties in the courts of any
jurisdiction.
(b) The Company hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to the Securities, this Indenture in any
New York State or Federal court. The Company hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) The Company irrevocably consents to service of process in
the manner provided for notices in Section 1.5. Nothing in this Agreement will
affect the right of any Holder or the Trustee to serve process in any other
manner permitted by law.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ALLIED WASTE INDUSTRIES, INC.
By:___________________________
Name:
Title:
Attest:
__________________________
Name:
Title:
FIRST TRUST NATIONAL ASSOCIATION
By:___________________________
Name:
Title:
Attest:
__________________________
Name:
Title:
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