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EXHIBIT (d)(9)
TALK AMERICA HOLDINGS, INC.
TO
WILMINGTON TRUST COMPANY
Trustee
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INDENTURE
Dated as of March , 2002
Providing for the Issuance of Subordinated Debt Securities in Series
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TALK AMERICA HOLDINGS, INC.
Certain Sections of this Indenture relating to Sections 310
through 318, inclusive, of the Trust Indenture Act of 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(S) 310(a)(1)............................................................609
(a)(2) ..........................................................609
(a)(3) ...............................................Not Applicable
(a)(4) ...............................................Not Applicable
(b) ........................................................608, 610
(S) 311(a)...............................................................613
(b)...............................................................613
(S) 312(a)...............................................................701
............................................................702(a)
(b)............................................................702(b)
(c) ...........................................................702(c)
(S) 313(a) ...........................................................703(a)
(b)............................................................703(a)
(c)............................................................703(a)
(d)............................................................703(b)
(S) 314(a)...............................................................704
(a)(4) .....................................................101, 704
(b)....................................................Not Applicable
(c)(1)............................................................102
(c)(2) ..........................................................102
(c)(3) ...............................................Not Applicable
(d) ...................................................Not Applicable
(e)...............................................................102
(S) 315(a)...............................................................601
(b)...............................................................602
(c)...............................................................601
(d)...............................................................601
(e)...............................................................514
(S) 316(a)...............................................................101
(a)(1)(A)....................................................502, 512
(a)(1)(B).........................................................513
(a)(2).................................................Not Applicable
(b)...............................................................508
(c)............................................................104(c)
(S) 317(a)(1)............................................................503
(a)(2) ...........................................................504
(b)..............................................................1505
(S) 318(a)...............................................................107
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE ARTICLE ONE Definitions and Other Provisions of General Application......................................1
Section 101. Definitions............................................................................1
Section 102. Compliance Certificates and Opinions...................................................8
Section 103. Form of Documents Delivered to Trustee.................................................9
Section 104. Acts of Holders; Record Dates..........................................................9
Section 105. Notices, Etc., to Trustee and Company.................................................11
Section 106. Notice to Holders; Waiver.............................................................11
Section 107. Conflict with Trust Indenture Act.....................................................11
Section 108. Effect of Headings and Table of Contents..............................................12
Section 109. Successors and Assigns................................................................12
Section 110. Separability Clause...................................................................12
Section 111. Benefits of Indenture.................................................................12
Section 112. Governing Law.........................................................................12
Section 113. Legal Holidays........................................................................12
ARTICLE TWO Security Forms ......................................................................................12
Section 201. Forms Generally.......................................................................12
Section 202. Additional Provisions Required in Book-Entry Security.................................13
Section 203. Form of Trustee's Certificate of Authentication.......................................14
ARTICLE THREE The Securities.....................................................................................14
Section 301. Amount Unlimited; Issuable in Series..................................................14
Section 302. Denominations.........................................................................17
Section 303. Execution, Authentication, Delivery and Dating........................................17
Section 304. Temporary Securities..................................................................19
Section 305. Registration, Registration of Transfer and Exchange...................................19
Section 306. Mutilated, Destroyed, Lost and Stolen Securities......................................21
Section 307. Payment of Interest; Interest Rights Preserved........................................22
Section 308. Persons Deemed Owners.................................................................23
Section 309. Cancellation..........................................................................24
Section 310. Cancellation and/or Adjustment of Book-Entry Securities...............................24
Section 311. Computation of Interest...............................................................24
Section 312. CUSIP Numbers.........................................................................24
ARTICLE FOUR Satisfaction and Discharge..........................................................................25
Section 401. Satisfaction and Discharge of Indenture...............................................25
Section 402. Application of Trust Money............................................................26
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ARTICLE FIVE Remedies............................................................................................26
Section 501. Events of Default.....................................................................26
Section 502. Acceleration of Maturity; Rescission and Annulment....................................28
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.......................29
Section 504. Trustee May File Proofs of Claim......................................................29
Section 505. Trustee May Enforce Claims Without Possession of Securities...........................30
Section 506. Application of Money Collected........................................................30
Section 507. Limitation on Suits...................................................................30
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.............31
Section 509. Restoration of Rights and Remedies....................................................31
Section 510. Rights and Remedies Cumulative........................................................31
Section 511. Delay or Omission Not Waiver..........................................................31
Section 512. Control by Holders....................................................................32
Section 513. Waiver of Past Defaults...............................................................32
Section 514. Undertaking for Costs.................................................................32
ARTICLE SIX The Trustee..........................................................................................33
Section 601. Certain Duties and Responsibilities...................................................33
Section 602. Notice of Defaults....................................................................33
Section 603. Certain Rights of Trustee.............................................................33
Section 604. Not Responsible for Recitals or Issuance of Securities................................34
Section 605. May Hold Securities and Serve as Trustee Under Other Indentures.......................35
Section 606. Money Held in Trust...................................................................35
Section 607. Compensation and Reimbursement........................................................35
Section 608. Disqualification; Conflicting Interests...............................................36
Section 609. Corporate Trustee Required; Eligibility...............................................37
Section 610. Resignation and Removal; Appointment of Successor.....................................37
Section 611. Acceptance of Appointment by Successor................................................39
Section 612. Merger, Conversion, Consolidation or Succession to Business...........................40
Section 613. Preferential Collection of Claims Against Company.....................................40
Section 614. Investment of Certain Payments Held by the Trustee....................................40
Section 615. Appointment of Authenticating Agent...................................................41
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Company..................................................43
Section 701. Company to Furnish Trustee Names and Addresses of Holders.............................43
Section 702. Preservation of Information; Communications to Holders................................43
Section 703. Reports by Trustee....................................................................44
Section 704. Reports by Company....................................................................44
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ARTICLE EIGHT Successors.........................................................................................44
Section 801. Merger, Consolidation or Sale of Assets...............................................44
Section 802. Successor Substituted.................................................................45
ARTICLE NINE Supplemental Indentures.............................................................................45
Section 901. Supplemental Indentures Without Consent of Holders....................................45
Section 902. Supplemental Indentures with Consent of Holders.......................................47
Section 903. Execution of Supplemental Indentures..................................................48
Section 904. Effect of Supplemental Indentures.....................................................48
Section 905. Conformity with Trust Indenture Act...................................................48
Section 906. Reference in Securities to Supplemental Indentures....................................48
ARTICLE TEN Covenants............................................................................................48
Section 1001. Payment of Securities.................................................................48
Section 1002. Maintenance of Office or Agency.......................................................49
Section 1003. Money for Securities Payments to Be Held in Trust.....................................49
Section 1004. Commission Reports....................................................................51
Section 1005. Compliance Certificate................................................................51
Section 1006. Stay, Extension and Usury Law.........................................................52
Section 1007. Corporate Existence...................................................................52
Section 1008. Taxes.................................................................................52
Section 1009. Investment Company Act................................................................52
ARTICLE ELEVEN Redemption of Securities..........................................................................52
Section 1101. Applicability of Article..............................................................52
Section 1102. Election to Redeem: Notice to Trustee.................................................53
Section 1103. Selection by Trustee of Securities to Be Redeemed.....................................53
Section 1104. Notice of Redemption..................................................................53
Section 1105. Deposit of Redemption Price...........................................................54
Section 1106. Securities Payable on Redemption Date.................................................54
Section 1107. Securities Redeemed in Part...........................................................55
ARTICLE TWELVE Sinking Funds.....................................................................................55
Section 1201. Applicability of Article..............................................................55
Section 1202. Satisfaction of Sinking Fund Payments with Securities.................................55
Section 1203. Redemption of Securities for Sinking Fund.............................................56
ARTICLE THIRTEEN Subordination of Securities.....................................................................56
Section 1301. Agreement to Subordinate..............................................................56
Section 1302. No Payment on Securities if Senior Debt in Default....................................56
Section 1303. Distribution on Acceleration of Securities; Dissolution and Reorganization;
Subrogation of Securities.............................................................57
Section 1304. Reliance by Senior Debt on Subordination Provisions...................................60
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Section 1305. No Waiver of Subordination Provisions...........................................61
Section 1306. Trustee's Relation to Senior Debt...............................................61
Section 1307. Other Provisions Subject Hereto.................................................62
Section 1308. Limitation on Issuance of Other Subordinated Debt...............................62
ARTICLE FOURTEEN Conversion of Securities..................................................................62
Section 1401. Applicability of Article........................................................62
Section 1402. Conversion Privilege and Conversion Price.......................................62
Section 1403. Conversion Procedure............................................................63
Section 1404. Fractional Shares...............................................................64
Section 1405. Taxes on Conversion.............................................................64
Section 1406. Company to Provide Stock........................................................64
Section 1407. Adjustment of Conversion Price..................................................65
Section 1408. No Adjustment...................................................................68
Section 1409. Other Adjustments...............................................................69
Section 1410. Adjustments for Tax Purposes....................................................69
Section 1411. Adjustments by the Company......................................................69
Section 1412. Notice of Adjustment............................................................69
Section 1413. Notice of Certain Transactions..................................................70
Section 1414. Effect of Reclassifications, Consolidations, Mergers or Sales on Conversion
Privilege.......................................................................70
Section 1415. Trustee's Disclaimer............................................................71
ARTICLE FIFTEEN Defeasance and Covenant Defeasance.........................................................71
Section 1501. Applicability of Article; Company's Option to Effect Defeasance or Covenant
Defeasance......................................................................71
Section 1502. Defeasance and Discharge........................................................72
Section 1503. Covenant Defeasance.............................................................72
Section 1504. Conditions to Defeasance or Covenant Defeasance.................................73
Section 1505. Deposited Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions........................................................74
Section 1506. Reinstatement...................................................................75
Section 1507. Qualifying Trustee..............................................................75
ARTICLE SIXTEEN Immunity of Incorporators, Stockholders, Officers, Directors and Employees.................76
Section 1601. Exemption from Individual Liability.............................................76
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
v
INDENTURE, dated as of March , 2002, between Talk America
Holdings, Inc., a Delaware corporation (the "Company"), and Wilmington Trust
Company (hereafter, the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its senior
subordinated unsecured debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more series as provided
in this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.
------------
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation in the United States of
America; and
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
1
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Book-Entry Securities, the rules
and procedures of the Depositary that apply to any such transfer or exchange.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 615 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed
in Section 202 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or such nominee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Capital Stock" means any and all shares, interests,
participations, rights or other equivalents (however designated) of equity
interests in any entity, including, without limitation, corporate stock and
partnership interests.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Stock" means the common stock of the Company as the
same exists at the date of the execution of this Indenture or as such stock may
be constituted from time to time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
2
Chief Executive Officer, its President, its Chief Financial Officer, a Vice
Chairman of the Board, a Vice Chairman or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Conversion Agent" means any Person authorized by the Company
to act as Conversion Agent.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered, which office at the date of original execution of this
Indenture is located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, except that, with respect to presentation of the
Securities for payment or registration of transfers or exchanges and the
location of the register, such term means the office or agency of the Trustee at
which at any particular time its corporate agency business shall be conducted.
"Custodian" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
Book-Entry Securities, the Person designated as Custodian for such series by the
Company pursuant to Section 301 or Section 305; if at any time there is more
than one such Person, "Custodian" as used with respect to the Securities of any
series shall mean the Custodian with respect to the Securities of such series.
"Daily Market Price" means the price of a share of Common
Stock on the relevant date, determined (a) on the basis of the last reported
sale price regular way of the Common Stock as reported on the Nasdaq Stock
Market's National Market (the "NNM"), or if the Common Stock is not then listed
on the NNM, as reported on such national securities exchange upon which the
Common Stock is listed, or (b) if there is no such reported sale on the day in
question, on the basis of the average of the closing bid and asked quotations
regular way as so reported, or (c) if the Common Stock is not listed on the NNM
or on any national securities exchange, on the basis of the average of the high
bid and low asked quotations regular way on the day in question in the
over-the-counter market as reported by the National Association of Securities
Dealers Automated Quotation System, or if not so quoted, as reported by National
Quotation Bureau, Incorporated, or a similar organization.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
Book-Entry Securities, the Person designated as Depositary for such series by
the Company pursuant to Section 301 or Section 305, which Person shall be a
clearing agency registered under the Securities Exchange Act of 1934; and if at
any time there is more than one such Person, "Depositary" as used with respect
to the Securities of any series shall mean the Depositary with respect to the
Securities of such series.
"Designated Senior Debt" means (i) any Senior Debt which, as
of the date of this Indenture, has an aggregate principal amount outstanding of
at least $15 million, and (ii) any Senior Debt which, at the date of
determination, has an aggregate principal amount outstanding of, or commitments
to lend up to, a least $15 million and is specifically designated by the Company
in the instrument evidencing or governing such Senior Debt as "Designated Senior
3
Debt" for purposes of this Indenture (provided, that such instrument may place
limitations and conditions on the right of such Senior Debt to exercise the
rights of Designated Senior Debt).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indebtedness" means, with respect to any person, all
obligations, whether or not contingent, of such person (i)(a) for borrowed money
(including, but not limited to, any indebtedness secured by a security interest,
mortgage or other lien on the assets of such person which is (1) given to secure
all or part of the purchase price of property subject thereto, whether given to
the vendor of such property or to another, or (2) existing on property at the
time of acquisition thereof), (b) evidenced by a note, debenture, bond or
written instrument, (c) under a lease required to be capitalized on the balance
sheet of the lessee under GAAP or under any lease or related document (including
a purchase agreement) which provides that such person is contractually obligated
to purchase or to cause a third party to purchase such leased property, (d) in
respect of letters of credit, bank guarantees or bankers' acceptances (including
reimbursement obligations with respect to any of the foregoing), (e) with
respect to Indebtedness secured by a mortgage, pledge, lien, encumbrance, charge
or adverse claim affecting title or resulting in an encumbrance to which the
property or assets of such person are subject, whether or not the obligation
secured thereby shall have been assumed or Guaranteed by or shall otherwise be
such person's legal liability, (f) in respect of the balance of the deferred and
unpaid purchase price of any property or assets, and (g) under interest rate or
currency swap agreements, cap, floor and collar agreements, spot and forward
contracts and similar agreements and arrangements; (ii) with respect to any
obligation of others of the type described in the preceding clause (i) or under
clause (iii) below assumed by or guaranteed in any manner by such person or in
effect guaranteed by such person through an agreement to purchase (including,
without limitation, "take or pay" and similar arrangements), contingent or
otherwise (and the obligations of such person under any such assumptions,
guarantees or other such arrangements); and (iii) any and all deferrals,
renewals, extensions, refinancings and refundings of, or amendments,
modifications or supplements to, any of the foregoing.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
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 forms and terms of
particular series of Securities established as contemplated by Section 301.
"Indexed Security" means any Security which provides that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
4
"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.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Issuance Date" means the date on which the Securities are
first authenticated and issued.
"Material Subsidiary" means any Subsidiary of the Company
which, at the date of determination, is a "significant subsidiary" as defined in
Rule 1-02(w) of Regulation S-X under the Securities Act and the Exchange Act (as
such Regulation is in effect on the date hereof).
"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.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Financial Officer, a Vice Chairman of the Board, a Vice Chairman or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary, of the Company
(each, an "Officer"), and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of legal counsel,
who may be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"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 canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided, that if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to Section 1104 of this
Indenture or provision therefor satisfactory to the Trustee has been made;
5
(iii) Securities, except to the extent provided in Sections
1502 and 1503, with respect to which the Company has effected defeasance or
covenant defeasance as provided in Article Fifteen; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands 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, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action 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, (i) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 502, (ii) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 301 on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the U.S. dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed to be Outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) except for the
purpose of making the calculations required by Section 313 of the Trust
Indenture Act, 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 relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee 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 or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Sections 301.
6
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for 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.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee,
means any officer assigned by the Trustee to administer corporate trust matters
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Debt" means the principal of, interest on and other
amounts due on Indebtedness of the Company, whether outstanding on the date of
the Indenture or thereafter created, incurred, assumed or Guaranteed by the
Company; unless, in the instrument creating or evidencing or pursuant to which
Indebtedness is outstanding, it is expressly provided that such Indebtedness is
not senior in right of payment to the Securities. Senior Debt includes, with
respect to the obligations described above, interest accruing, pursuant to the
terms of such Senior Debt, on or after the filing of any petition in bankruptcy
or for reorganization relating to the Company, whether or not post-filing
interest is allowed in such proceeding, at the rate specified in the instrument
governing the relevant obligation. Notwithstanding anything to the contrary in
the foregoing, Senior Debt shall not include: (a) Indebtedness of or amounts
owed by the Company for compensation to employees, or for goods, services or
materials purchased in the ordinary course of business; (b) Indebtedness of the
Company to a Subsidiary of the Company; (c) any liability for Federal, state,
local or other taxes owed or owing by the Company; or (d) Indebtedness of or
amounts owed by the Company under the Company's 4 1/2% Convertible Subordinated
Notes due 2002 and the Company's 5% Convertible Subordinated Notes due 2004.
"Senior Subordinated Debt" means the Securities and any other
Indebtedness of the Company that specifically provides that it is to rank pari
passu with other Senior Subordinated Debt of the Company and is not subordinated
to any Indebtedness of the Company that is not Senior Debt.
7
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Company pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary voting
power for the election of directors of such corporation (irrespective of whether
or not at the time stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of any contingency)
is at the time directly or indirectly owned by the Company, or by one or more
other Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday, other than any day on which securities are not traded on the
applicable securities exchange or in the applicable securities market.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which this instrument was
executed, except as provided in Section 905 hereof; provided, however, that in
the event 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.
"U.S. Government Obligations" has the meaning specified in
Section 1504.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under
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 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.
8
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
representations by legal counsel or an opinion of legal counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate, representations or opinion with respect to the matters upon which
such officer's certificate or opinion is based are erroneous. Any such
certificate or representations of legal counsel or opinion of legal 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 legal counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by
this Indenture to be given, made or taken by Holders may
be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except
as herein otherwise
9
expressly provided, such action shall become effective
when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity,
such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of
the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems
sufficient.
(c) The Company may fix any day as the record date for the
purpose of determining the Holders of Securities of any
series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted
to be given or taken by Holders of Securities of such
series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made
by any Person in respect of any such action, or, in the
case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders
required to be provided pursuant to Section 701) prior to
such first solicitation or vote, as the case may be. With
regard to any record date for action to be taken by the
Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or
their duly designated proxies) shall be entitled to give
or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security 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
the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered
to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made
upon such Security.
10
Section 105. Notices, Etc., to Trustee and Company.
--------------------------------------
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company, Attention: Treasurer.
Section 106. Notice to Holders; Waiver.
--------------------------
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Any notice or communication shall also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA.
Section 107. Conflict with Trust Indenture Act.
----------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
11
Section 108. Effect of Headings and Table of Contents.
-----------------------------------------
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
-----------------------
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
--------------------
In case any provision in this Indenture or in 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 111. Benefits of Indenture.
----------------------
Nothing in this Indenture or in the Securities, express 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 112. Governing Law.
--------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 113. Legal Holidays.
---------------
In any case where any Interest Payment Date, Redemption 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 the Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, the Redemption Date, or at the Stated Maturity or
Maturity; provided, that no interest shall accrue for the intervening period.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
----------------
The Securities of each series shall be in substantially the
form set forth in Exhibit A hereto, which is hereby incorporated in and
expressly made a part of this Indenture, or in such
12
other 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.
The Securities may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company) or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced
by their execution of the Securities. The Company shall furnish any such legend
not contained in Exhibit A to the Trustee in writing at or prior to the delivery
of the Company Order contemplated by Section 303 for the authentication and
delivery of such Securities. The terms and provisions of the Securities set
forth in Exhibit A are part of the terms of this Indenture and to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
To the extent any provision of any Securities conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling. If the form of Securities of any series is established by, or by
action taken pursuant to, a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
Section 202. Additional Provisions Required in Book-Entry Security.
------------------------------------------------------
Each Book-Entry Security issued hereunder shall represent such
of the outstanding Securities as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount of outstanding
Securities from time to time endorsed thereon and that the aggregate principal
amount of outstanding Securities represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Book-Entry Security to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Securities represented
thereby shall be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 305 hereof.
Any Book-Entry Security issued hereunder shall, in addition to
the provisions contained in Exhibit A and in addition to any legend required by
the Depositary, bear a legend in substantially the following form:
"Unless this certificate is presented by an authorized
representative of the Depository Trust Company, a New York Corporation ("DTC"),
New York, New York, to the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co., or to such other entity as is
requested by an authorized representative of DTC) any transfer, pledge or other
use hereof for value or otherwise by or to any person is wrongful inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
13
Transfers of this global security shall be limited to
transfers in whole, but not in part, to nominees of DTC or to a successor
thereof or such successor's nominee and transfers of portions of this global
security shall be limited to transfers made in accordance with the restrictions
set forth in the indenture referred to on the reverse hereof."
Section 203. 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.
Dated:
WILMINGTON TRUST
COMPANY ,
As Trustee
By
-------------------------------
Authorized Signatory
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited (except as may be
limited by applicable law).
The Securities may be issued from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution and,
subject to Section 303, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities
14
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906 or 1107 and except for any Securities that, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than 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;
(4) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method of
determination thereof;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the method
by which such date or dates shall be determined, the Interest Payment Dates on
which any such interest shall be payable and the Regular Record Date for any
interest payable on any Interest Payment Date;
(6) if other than the Corporate Trust Office of the Trustee,
the place or places where the principal of and any premium and interest on
Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which, the currency or currencies (including currency 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;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods (or
the methods of determination of such a period or periods) within which, the
price or prices at 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;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall be
issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any Securities of
the series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the currency of
the United States of America for purposes of the definition of "Outstanding" in
Section 101;
(11) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with reference to
an index, formula or other method, the index, formula or other method by which
such amounts shall be determined;
15
(12) if the amount Outstanding of an Indexed Security for
purposes of the definition of "Outstanding" is to be other than the principal
face amount at original issuance, the method of determination of such amount;
(13) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency, currencies
or currency units in which payment of the principal of and any premium and
interest on Securities of such series as to which such election is made shall be
payable, and the periods within which and the other terms and conditions upon
which such election is to be made;
(14) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion shall be determined;
(15) if either or both of Section 1502 or 1503 does not apply
to the Securities of any series;
(16) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Book-Entry Securities and, in such
case, the Depositary and Custodian with respect to such Book-Entry Security or
Securities if other than as set forth in Section 305, and the circumstances
under which any Book-Entry Security may be registered for transfer or exchange,
or authenticated and delivered, in the name of a Person other than such
Depositary or its nominee, if other than as set forth in Section 305;
(17) the rights, if any, to defer payments of interest on any
Securities of the series by extending the interest payment period, and the
duration of such extensions;
(18) any additional, modified or different covenants or Events
of Default applicable to one or more particular series of Securities;
(19) the application, if any, of Article Fourteen to the
Securities of any Series;
(20) the Person appointed as the Paying Agent, if other than
as set forth in Section 1002; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
303) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such 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.
16
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the series.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as contemplated
by Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by
two Officers, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities 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 the Company Order shall authenticate and deliver or
make available for delivery such Securities; provided, however, that in the case
of Securities of a series that are not to be originally issued at one time, the
Trustee shall authenticate and deliver or make available for delivery such
Securities from time to time in accordance with such other procedures
(including, without limitation, the receipt by the Trustee of 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 forms or terms of
the Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, 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 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(a) if the form or forms of such Securities have been
established by or pursuant to Board Resolution as
permitted by Section 201, that such form or forms have
been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been, or in the case
of Securities of a series that are not to be originally
issued at one time, will be established
17
by or pursuant to Board Resolution as permitted by Section
301, that such terms have been, or in the case of
Securities of a series that are not to be originally
issued at one time, will be established in conformity with
the provisions of this Indenture, subject, in the case of
Securities of a series that are not to be originally
issued at one time, to any conditions specified in such
Opinion of Counsel; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company, will constitute
valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights
and to general equity principles; provided, that such
Opinion of Counsel need express no opinion as to whether a
court in the United States would render a money judgment
in currency other than that of the United States.
If such form or forms or terms have been so established, the
Trustee shall not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which the Trustee determines would expose it to personal liability.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents, with appropriate instructions satisfactory to the Trustee 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.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in whole or in part in the form of
one or more Book-Entry Securities, then the Company shall execute and the
Trustee, upon receipt of a Company Order, shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver or
make available for delivery one or more Securities in such 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
Book-Entry Security or Securities, (ii) shall be registered in the name of the
Depositary for such Book-Entry Security or Securities 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 204.
Unless otherwise established pursuant to Section 301, the
Company initially appoints The Depositary Trust Company ("DTC") to act as
Depositary and the Trustee to act as Custodian. Each Depositary designated
pursuant to Section 301 for a Book-Entry Security must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
18
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation. The Trustee shall have no responsibility to determine if
the Depositary is so registered. Each Depositary shall enter into an agreement
with the Trustee governing the respective duties and rights of such Depositary
and the Trustee with regard to Book-Entry Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature of an authorized officer
thereof, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. 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 309, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. 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 or make available for delivery, temporary Securities
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall execute and
the Trustee, upon receipt of a Company Order, shall authenticate and deliver or
make available for delivery in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor. 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 and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register")
19
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities and of transfers of
Securities and shall otherwise comply with TIA ss. 312(a). The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Notwithstanding anything herein to the contrary, there shall
be only one Security Register with respect to each series of Securities.
Upon surrender for registration of transfer of any Security of
any series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall, upon receipt of a
Company Order, authenticate and deliver or make available for delivery, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall, upon receipt of a Company Order, authenticate and deliver or make
available for delivery, the Securities that the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
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 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 of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding the foregoing, any Book-Entry Security shall
be exchangeable pursuant to this Section 305 for Securities registered in the
names of Persons other than the
20
Depositary for such Security or its nominee only if (i) such Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for such
Book-Entry Security or if at any time such Depositary ceases to be a clearing
agency registered under the Securities Exchange Act of 1934, as amended and the
Company does not appoint a successor Depositary within 90 days after receipt by
it of such notice or after it becomes aware of such cessation, (ii) the Company
executes and delivers to the Trustee a Company Order that such Book-Entry
Security shall be so exchangeable or (iii) there shall not have occurred and be
continuing an Event of Default with respect to the Securities. Any Book-Entry
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as such Depositary shall
direct.
In connection with all transfers and exchanges of beneficial
interests in Book-Entry Securities, the transferor of such beneficial interest
must deliver to the Registrar a written order from a Holder given to the
Depositary in accordance with the Applicable Procedures directing the Depositary
to credit or cause to be credited a beneficial interest in another Book-Entry
Security in an amount equal to the beneficial interest to be transferred or
exchanged and instructions given in accordance with the Applicable Procedures
containing information regarding the Holder account to be credited with such
increase. Upon satisfaction of all of the requirements for transfer or exchange
of beneficial interests in Book-Entry Securities contained in this Indenture and
the Securities or otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Book-Entry Security pursuant
to Section 310 hereof.
Notwithstanding any other provision in this Indenture, unless
and until it is exchanged in whole or in part for Securities that are not in the
form of a Book-Entry Security, a Book-Entry Security may not be transferred or
exchanged except as a whole by the Depositary with respect to such Book-Entry
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in a Book-Entry Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee, upon receipt of a Company Order, shall
authenticate and deliver or make available for delivery in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
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
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 has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee, upon receipt of a Company
Order, shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new
21
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
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) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to (or, in the case of additional Securities issued pursuant
to any payment in kind provision, issued in the name of) 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 301; provided, however,
that at the option of the Company, interest on Securities of any series that
bear cash interest may be paid (i) by check mailed to the address of the Person
entitled thereto as it shall appear on the Security Register or (ii) by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Security Register; provided, that such Person shall have given the Paying
Agent written wire instructions at least five Business Days prior to the
applicable Interest Payment Date.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security of
22
such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money or, in the case of any
Securities designated by their terms as Pay-in-Kind, additional Securities,
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 or additional Securities,
as applicable, when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon the
Company shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Company shall promptly
notify the Trustee of such Special Record Date and, in the name and at the
expense of the Company, the Trustee 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 Securities of such series at his
address as it appears in the Security 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 the Securities of
such series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by the Trustee.
In the case of any Security which is converted after any
Regular Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Security whose Maturity is 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, and such interest
(whether or not punctually paid or duly provided for) 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 such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of
23
principal of and any premium and (subject to Section 307) any interest on such
Security and for all other purposes whatsoever, whether or not such 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.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Securities so delivered and any Securities surrendered
directly to the Trustee for any such purpose shall be promptly canceled by the
Trustee and such cancellation shall be noted conspicuously on each such
Security. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of as directed by a Company Order or after 90 days, if not in
receipt of such Company Order, shall be disposed of in accordance with the
Trustee's customary procedures.
Section 310. Cancellation and/or Adjustment of Book-Entry Securities.
--------------------------------------------------------
At such time as a particular Book-Entry Security has been
redeemed, repurchased or canceled in whole and not in part, each such Book-Entry
Security shall be returned to or retained and canceled by the Trustee in
accordance with Section 309 hereof. At any time prior to such cancellation, if
any beneficial interest in a Book-Entry Security is exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Book-Entry Security, the principal amount of Securities represented
by such Book-Entry Security shall be reduced accordingly and an endorsement
shall be made on such Book-Entry Security by the Trustee or by the Depositary at
the direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Book-Entry
Security, such other Book-Entry Security shall be increased accordingly and an
endorsement shall be made on such Book-Entry Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
Section 311. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
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Section 312. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such CUSIP numbers. The Company will promptly
notify the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of
further effect with respect to Securities of any series (except as to any
surviving rights of registration of transfer, exchange or replacement of such
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such Securities, including, but not
limited to, Article Thirteen hereof, when
(1) either
(A) all such Securities theretofore authenticated and
delivered (other than (i) such Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306 and (ii)
such Securities for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company, and
the Company, in the case of (B)(i), (ii) or (iii) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for the purpose an
amount in the currency or currencies or currency unit or units in which such
Securities are payable sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation,
for principal and any premium and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
25
(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 with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607 and
to any Authenticating Agent under Section 615 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402, Article Six and the
last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (unless it is
inapplicable to a particular series or is specifically deleted or modified in
the Board Resolution (or action taken pursuant thereto), or supplemental
indenture under which such series of Securities is issued or has been modified
in an indenture supplemental hereto):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable (whether or not prohibited by the
subordination provisions of this Indenture), and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity (whether or not prohibited
by the subordination provisions of this Indenture); or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series and continuance of such
default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to Securities of that
series (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
26
the Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that 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
(5) the Company or any Material Subsidiary pursuant to or
within the meaning of any Bankruptcy Law: (i) commences a voluntary case, (ii)
consents to the entry of an order for relief against it in an involuntary case
in which it is the debtor, (iii) consents to the appointment of a Custodian of
it or for all or substantially all of its property, (iv) makes a general
assignment for the benefit of its creditors, or (v) makes the admission in
writing that it generally is unable to pay its debts as the same become due; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (i) is for relief against the Company or
any Material Subsidiary of the Company in an involuntary case, (ii) appoints a
Custodian of the Company or any Material Subsidiary of the Company or for all or
substantially all of its property, and the order or decree remains unstayed and
in effect for 60 days or (iii) orders the liquidation of the Company or any
Material Subsidiary of the Company, and the order or decree remains unstayed and
in effect for 60 days; or
(7) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any Material Subsidiary of the
Company (or the payment of which is guaranteed by the Company or any Material
Subsidiary of the Company), whether such Indebtedness or guarantee now exists or
is created after the Issuance Date, which default (i) is caused by a failure to
pay when due principal of or interest on such Indebtedness within the grace
period provided for in such Indebtedness (which failure continues beyond any
applicable grace period)(a "Payment Default") or (ii) results in the
acceleration of such Indebtedness prior to its express maturity (without such
acceleration being rescinded or annulled) and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any such
Indebtedness under which there is a Payment Default or the maturity of which has
been so accelerated, aggregates $10 million or more; or
(8) a final, non-appealable judgment or final non-appealable
judgments (other than any judgment as to which a reputable insurance company has
accepted full liability) for the payment of money are entered by a court or
courts of competent jurisdiction against the Company or any Material Subsidiary
of the Company and remain undischarged for a period (during which execution
shall not be effectively stayed) of 60 days, provided that the aggregate of all
such judgments exceeds $5 million; or
(9) any other Event of Default provided with respect to
Securities of that series.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
27
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default
described in clause 5 or 6 of Section 501) with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount of such Securities as
may be specified in the terms thereof) of all of the Securities of that series
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or, in the case of Original Issue Discount Securities or Indexed
Securities, such specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series 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 or rates prescribed therefor
in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder, if
any, and the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that series
that have become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
If an Event of Default described in clause 5 or 6 of Section
501 occurs, the Outstanding Securities shall ipso facto become immediately due
and payable without need of any declaration or other act on the part of the
Trustee or any Holder.
28
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.
------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If 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 enforce any other proper remedy.
Section 504. 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 and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments directly 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 607.
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 any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and may be a member of a
creditors' or other similar committee.
29
Section 505. 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 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or any premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee
(including its agents and counsel) under Section 607;
SECOND: To the holders of Senior Debt to the extent required
by Article Thirteen;
THIRD: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal and any premium and interest, respectively; and
FOURTH: The balance, if any, to the Company or to such other
party as a final order of a court of competent jurisdiction shall direct.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
30
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee before or during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
------------------------------------------------------
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 307) any interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306 and as otherwise provided in Section 507, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or
31
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may by written notice to the Trustee on
behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. 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, including counsel fees and expenses, against any such party litigant, in
the manner
32
and to the extent provided in the Trust Indenture Act; provided, 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 the Holders of 10% in aggregate
principal amount of the Outstanding Securities of any series.
ARTICLE SIX
The Trustee
Section 601. 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 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of
any series and if it is known to the Trustee, the Trustee shall, within 90 days,
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 in the payment on any Securities of such series, the Trustee
may withhold notice if and so long as the Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(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
(whether in its original or facsimile form) believed by it
to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
33
(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 of its selection 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) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be
authorized or within the rights or powers conferred upon
it by this Indenture; provided that the Trustee's conduct
does not constitute willful misconduct or negligence.
Section 604. 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 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.
34
Section 605. May Hold Securities and Serve as Trustee Under Other
----------------------------------------------------
Indentures.
-----------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar, any Conversion Agent or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar, Conversion Agent or such other agent.
Subject to the provisions of Section 608, the Trustee may become and
act as trustee under other indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding in the same manner as if it were not Trustee.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as shall be agreed in writing between the Company and the Trustee
for its acceptance of this Indenture and all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, willful misconduct or bad
faith; and
(3) to indemnify each of the Trustee, or any predecessor Trustee, for,
and to hold it harmless against, any and all loss, liability, damage, claim or
expense (including reasonable attorney fees and expenses) incurred without
negligence or willful misconduct 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 (whether
asserted by the Company, any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
(4) the payment and reimbursement terms and conditions set forth in the
Schedule of Fees executed and delivered by the Company to the Trustee, including
the hourly charges for default administration, are reasonable.
35
The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate legal counsel and if the Company does
not defend the claim, the Company shall pay the reasonable fees and expenses of
such counsel, provided, that, if there may be legal defenses available to the
Trustee which are different from or additional to those available to the
Company, the Trustee shall have the right to select separate counsel to assert
such legal defenses and to participate in the defense of such action on behalf
of the Trustee with the costs and expenses of Trustee's separate counsel to be
paid by the Company. The Company need not pay for any settlement made without
its consent, which consent shall not be unreasonably withheld.
The Trustee shall have a lien prior to the Securities upon all property
and funds held by it hereunder for any amount owing it or any predecessor
Trustee pursuant to this Section 607, except with respect to funds held in trust
to pay principal and interest of particular Securities.
Without limiting any rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its agents and counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee.
Section 608. Disqualification; 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; provided that
there shall be excluded from the operation of this Section 608: any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding if (i) this
Indenture and such other indenture or indentures are wholly unsecured, and such
other indenture or indentures are hereafter qualified under the Trust Act of
1939, unless the Commission shall have found and declared by order pursuant to
subsection (b) of Section 305 or subsection (c) of Section 307 of the Trust
Indenture Act of 1939 that differences exists between the provisions of such
other indenture or indentures which are so likely to involve a material conflict
of interest as to make it necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as such under this Indenture
or such other indenture or indentures, or (ii) the Company shall have sustained
the burden of proving, on application to the Commission and after opportunity
for hearing thereon, that trusteeship under this Indenture and such other
indenture or indentures is not so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under this Indenture or
such other indenture or indentures.
36
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder that shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of any federal or state 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 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign 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 611 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition, at the expense of
the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities
of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company. If the instrument of
acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the
giving of such notice of removal, the Trustee being removed may
petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
37
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee with respect
to all Securities, or (ii) subject to Section 514, 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.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to 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 611. 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 611, 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 Section 611, any
Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such
series in the manner provided in Section 106. Each notice shall
include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
38
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) 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.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is not
retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or
39
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; provided, however, that to the extent that such property
and money is not held by the Trustee in trust for the benefit of
the Holders of particular Securities, such retiring Trustee shall
transfer and deliver to such successor Trustee such property and
money upon payment of its charges hereunder.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) and (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
---------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation or banking association
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation or banking association succeeding to all or
substantially all the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation or banking
association 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 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor 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 614. Investment of Certain Payments Held by the Trustee.
--------------------------------------------------
Any amounts held by the Trustee hereunder, other than pursuant to
Article Thirteen hereof, shall be invested by the Trustee from time to time at
the written direction of the Company in such investments as may be specified by
the Company and reasonably agreed to by the Trustee from time to time; provided
that in investing trust funds pursuant to the terms of this Section and
liquidating any investments held in trust hereunder, the Trustee may, to the
extent permitted by law, purchase securities (including for the purposes of this
paragraph securities as to which the Trustee or a Trustee Affiliate (as defined
below) is the issuer or guarantor) from, and sell securities to, itself or any
Trustee Affiliate and purchase securities underwritten by, or in which a market
is made by, the Trustee or a Trustee Affiliate. For the purposes hereof, a
40
"Trustee Affiliate" shall mean an entity that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Trustee. Any income or gain realized as a result of any such
investment shall be promptly distributed (in no event later than the next
Business Day) to the Company after any intended amounts have been paid to the
Holders entitled thereto, except after the occurrence and during the continuance
of an Event of Default. The Trustee shall have no liability to the Company for
any loss resulting from any investment made in accordance with this Section, and
shall bear no expense in connection with any investment pursuant to this
Section. Any such investment may be sold (without regard to maturity date) by
the Trustee whenever necessary to make any distribution required by this
Indenture. Nothing herein shall require the Trustee to invest funds held by it
pursuant to the last paragraph of Section 1003.
Section 615. 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 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
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 all or substantially all 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
41
Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
42
This is one of the Securities of the series ___ designated ___ therein
referred to in the within-mentioned Indenture.
Dated:
WILMINGTON TRUST COMPANY
As Trustee
By
--------------------------------------
As Authenticating Agent
By
--------------------------------------
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. 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 later than May 15 and November 15 in each year, a list, in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders as of the preceding November 15 or May 15, as the case may be, 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 in similar form and
content as of a date not more than 15 days prior to the time such list is
furnished; excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section
701 and the names and addresses of Holders received by the Trustee
in its capacity as Security Registrar. The Trustee may destroy any
list furnished to it as provided in Section 701 upon receipt of a
new list so furnished.
(b) The rights of the Holders 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 by the Trust Indenture Act.
43
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names
and addresses of Holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders 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. If required by Section 313(a) of the
Trust Indenture Act, the Trustee shall, within sixty days after
each May 15 following the date of the first issuance of Securities
hereunder deliver to Holders a brief report, dated as of such May
15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the
Company. The Company promptly will notify the Trustee when any
Securities are listed on any stock exchange or delisted therefrom.
Section 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to 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 the Trust Indenture Act; provided,
that any such information, documents or reports required to be filed with the
Commission 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.
ARTICLE EIGHT
Successors
Section 801. Merger, Consolidation or Sale of Assets.
---------------------------------------
The Company may not consolidate or merge with or into any person
(whether or not the Company is the surviving corporation),or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets unless:
(a) the Company is the surviving corporation or the Person formed by
or surviving any such consolidation or merger (if other than the
Company) or
44
to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized
or existing under the laws of the United States, any state thereof
or the District of Columbia;
(b) the corporation formed by or surviving any such consolidation or
merger (if other than the Company) or the corporation to which
such sale, assignment, transfer, lease, conveyance or other
disposition will have been made assumes all the Obligations of the
Company, pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee, under the Securities and the
Indenture;
(c) any such sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the Company's
properties or assets shall be as an entirety or virtually as an
entirety to one corporation;
(d) immediately after such transaction no Default or Event of Default
exists; and
(e) the Company or such corporation shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such transaction and the supplemental indenture
comply with the Indenture and that all conditions precedent in the
Indenture relating to such transaction have been satisfied.
Section 802. Successor Substituted.
---------------------
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 801 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or the
corporation to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor person has been named as the Company herein; provided,
however, that the predecessor Company in the case of a sale, assignment,
transfer, lease, conveyance or other disposition shall not be released from the
obligation to pay the principal of and interest on the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
45
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and 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
(3) to add any additional Events of Default with respect to all or any
series of Securities; or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of Securities
in uncertificated form or in the form of Book-Entry Securities; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any such
addition, change or elimination (i) shall neither (A) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301 and/or to add to the rights of the Holders of
Securities of any series, as provided in Article Three; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611(b); or
(9) 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 Securities in bearer form or coupons, if any; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein or
to make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause (10), other
than with respect to a defective provision, shall not adversely affect the
interests of the Holders of Securities of any series; or
46
(11) to qualify this Indenture under the Trust Indenture Act or to
comply with the requirements of the Commission in order to maintain the
qualification of the Indenture under the Trust Indenture Act; or
(12) to comply with Section 1414 hereof.
Section 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series adversely affected
by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of 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 reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change any
Place of Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or adversely
affect any right of the Holder of any Security to require the Company to
repurchase such Security, or adversely affect the right to convert any Security
as contemplated by Article Fourteen or modify the provisions of Article Thirteen
or the definition of "Senior Debt" in a manner adverse to the Holder of any
Security in any material respect, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section 513 except to increase
any percentage set forth in such Sections or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant changes in
this Section or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
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.
47
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Securities.
---------------------
The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities. Principal and
interest shall be considered paid on the date due if the Paying Agent (other
than the Company or an Affiliate of the Company) holds
48
on that date money or, in the case of any Securities designated by their terms
as Pay-in-Kind, additional Securities, designated for and sufficient to pay all
principal and interest then due and such Paying Agent is not prohibited from
paying such money or additional Securities, as applicable, to the Holders on
that date pursuant to the terms of this Indenture. To the extent lawful, the
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest (without regard to
any applicable grace period) at the rate borne by the Securities, compounded
semiannually.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange 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 Trustee is hereby initially appointed Paying Agent, and the
Corporate Trust Office of the Trustee is initially designated as the office or
agency for the foregoing purposes. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
or in the case that the Company files for protection under federal bankruptcy
laws or reorganization proceedings are initiated against the Company, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
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 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.
Section 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and 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 (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit with
a Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
49
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:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or received
by the Trustee in respect of obligations deposited with the Trustee pursuant to
Article Fifteen, or then held by the Company, in trust for the payment of the
principal of (and premium, if any) or interest on any Security of any series and
remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on Company
Request (unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property law, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof
(unless the Company has remitted required moneys or other property to the
appropriate governmental authority under any applicable escheat or abandoned or
unclaimed property laws, or has otherwise been discharged under such laws or
laws of similar applicability, in which case such Holder shall look solely to
its remedies (if any) under such laws and not to the Company), 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, shall at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the City of New York, including
without limitation the Wall Street Journal, 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.
50
Section 1004. Commission Reports.
------------------
Whether or not required by the rules and regulations of the Commission,
so long as any Securities are outstanding, the Company will file with the
Commission and furnish to the Trustee and to the holders of Securities all
quarterly and annual financial information required to be contained in a filing
with the Commission on Forms 10-Q and 10-K, including a "Management's Discussion
and Analysis of Financial Conditions and Results of Operations" and, with
respect to annual information only, a report thereon by the Company's certified
independent accountants. The Trustee will provide, at the Company's expense,
copies of any such documents to any Holders that request such copies. Delivery
of such documents to the Trustee is for information purposes only, and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely on Officers' Certificates).
Section 1005. Compliance Certificate.
----------------------
The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and its subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under, and complied with the covenants
and conditions contained in, this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of such Officer's
knowledge the Company has kept, observed, performed and fulfilled each and every
covenant, and complied with the covenants and conditions contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions hereof (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of which
such Officer may have knowledge) and that to the best of such Officer's
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal or of interest, if any, on the Securities
are prohibited.
One of the Officers signing such Officers' Certificate shall be either
the Company's principal executive officer, principal financial officer or
principal accounting officer.
The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon becoming aware of:
(a) any Default, Event of Default or default in the performance of any
covenant, agreement or condition contained in this Indenture; or
(b) any event of default under any other mortgage, indenture or
instrument as that term is used in Section 501(7), an Officers'
Certificate specifying such Default, Event of Default or default.
51
Section 1006. Stay, Extension and Usury Law.
-----------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law, 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 has been
enacted.
Section 1007. Corporate Existence.
-------------------
Except as provided in Article Eight hereof, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and the corporate, partnership or other
existence of each Subsidiary of the Company in accordance with the respective
organizational documents of each Subsidiary and the rights (charter and
statutory), licenses and franchises of the Company and its Subsidiaries;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any Subsidiary, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries taken as a whole and that the loss thereof is not adverse in
any material respect to the Holders.
Section 1008. Taxes.
------
The Company shall, and shall cause each of its Subsidiaries to, pay
prior to delinquency all taxes, assessments and governmental levies, except as
contested in good faith and by appropriate proceedings.
Section 1009. Investment Company Act.
------------------------
As long as any Securities are outstanding, the Company will conduct its
business and operations so as not to become an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and will take all steps required in order for it to continue not
to be an "investment company" and not to be required to be registered under the
Investment Company Act, including, if necessary, redeployment of the assets of
the Company.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable in whole or in part
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of any series) in accordance with this Article.
52
Section 1102. Election to Redeem: Notice to Trustee.
-------------------------------------
In case of any redemption at the election of the Company of the
Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not less than 30 days and
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of a portion of the principal amount of any
Security of such 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. If less
than all of the Securities of such series and of a specified tenor are to be
redeemed (unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not less than 30 days and not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
53
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) in the case of partial redemption of any Securities, the principal
amounts of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, or portion thereof, to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered for
payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case, and
(7) that there exists a conversion privilege, if such is the case, and
the current Conversion Price and the date on which the right to convert such
securities or portions thereof will expire, if applicable.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's Request received
by the Trustee at least 45 days prior to the Redemption Date, by the Trustee in
the name and at the expense of the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
---------------------------
On or prior to 10:00 a.m. (New York time) on the Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof which
are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
54
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall, upon receipt of a Company Order, authenticate and deliver or make
available for delivery to the Holder of such Security without service charge, a
new Security or Securities of the same series and of like tenor, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a Book-Entry Security is so surrendered, such
new Security so issued shall be a new Book-Entry Security.
ARTICLE TWELVE
Sinking Funds
Section 1201. 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 301 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 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, 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
55
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 1203. 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 1202 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 the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Subordination of Securities
Section 1301. Agreement to Subordinate.
-------------------------
The Company, for itself and its successors, and each Holder, by his
acceptance of Securities, agree that the payment of the principal of or interest
on or any other amounts due on the Securities is subordinated in right of
payment, to the extent and in the manner stated in this Article Thirteen, to the
prior payment in full of all existing and future Senior Debt. The Securities
shall rank pari passu among each other and shall rank senior to the Company's 4
1/2% Convertible Subordinated Notes due 2002 and the Company's 5% Convertible
Subordinated Notes due 2004.
Section 1302. No Payment on Securities if Senior Debt in Default.
---------------------------------------------------
Anything in this Indenture to the contrary notwithstanding, no payment
on account of principal of or redemption of, interest on or other amounts due on
the Securities (including the making of a deposit pursuant to Section 1105), and
no redemption, purchase, or other acquisition of the Securities, shall be made
by or on behalf of the Company (i) unless full payment of amounts then due for
principal and interest and of all other amounts then due on all Senior Debt has
been made or duly provided for pursuant to the terms of the instrument governing
such Senior Debt, (ii) if, at the time of such payment, redemption, purchase or
other acquisition, or immediately after giving effect thereto, there shall exist
under any Senior Debt, or any agreement pursuant to which any Senior Debt is
issued, any default, which default shall not have been cured or waived and which
default shall have resulted in the full amount of such
56
Senior Debt being declared due and payable or (iii) if, at the time of such
payment, redemption, purchase or other acquisition, the Trustee shall have
received written notice from the Representative of the holders of Designated
Senior Debt (a "Payment Blockage Notice") that there exists under such
Designated Senior Debt, or any agreement pursuant to which such Designated
Senior Debt is issued, any default, which default shall not have been cured or
waived, permitting the holders thereof to declare any amounts of such Designated
Senior Debt due and payable, but only for the period (the "Payment Blockage
Period") commencing on the date of receipt of the Payment Blockage Notice and
ending (unless earlier terminated by notice given to the Trustee by the
Representative of the holders of such Designated Senior Debt) on the earlier of
(a) the date on which such event of default shall have been cured or waived or
(b) 180 days from the receipt of the Payment Blockage Notice. Notwithstanding
the provisions described in the immediately preceding sentence (other than in
clauses (i) and (ii)), unless the holders of such Designated Senior Debt or the
Representative of such holders shall have accelerated the maturity of such
Designated Senior Debt, the Company may resume payments on the Securities after
the end of such Payment Blockage Period. Not more than one Payment Blockage
Notice may be given in any consecutive 365-day period, irrespective of the
number of defaults with respect to Senior Debt during such period.
In the event that, notwithstanding the provisions of this Section 1302,
payments are made by or on behalf of the Company in contravention of the
provisions of this Section 1302, such payments shall be held by the Trustee, any
Paying Agent or the holders, as applicable, in trust for the benefit of, and
shall be paid over to and delivered to, the Representative of the holders of
Senior Debt or the trustee under the indenture or other agreement (if any),
pursuant to which any instruments evidencing any Senior Debt may have been
issued for application to the payment of all Senior Debt ratably according to
the aggregate amounts remaining unpaid to the extent necessary to pay all Senior
Debt in full in accordance with the terms of such Senior Debt, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Debt.
The Company shall give prompt written notice to the Trustee and any
Paying Agent of any default or event of default under any Senior Debt or under
any agreement pursuant to which any Senior Debt may have been issued.
Section 1303. Distribution on Acceleration of Securities;
-------------------------------------------
Dissolution and Reorganization; Subrogation of
----------------------------------------------
Securities.
----------
(a) If the Securities are declared due and payable because of the
occurrence of an Event of Default, the Company shall give prompt
written notice to the holders of all Senior Debt or to the
trustee(s) for such Senior Debt of such acceleration. The Company
may not pay the principal of or interest on or any other amounts
due on the Securities until five Business Days after such holders
or trustee(s) of Senior Debt receive such notice and, thereafter,
the Company may pay the principal of or interest on or any other
amounts due on the Securities only if the provisions of this
Article permit such payment.
(b) Upon (i) any acceleration of the principal amount due on the
Securities because of an Event of Default or (ii) any direct or
indirect distribution of
57
assets of the Company upon any dissolution, winding up,
liquidation or reorganization of the Company (whether in
bankruptcy, insolvency or receivership proceedings or upon an
assignment for the benefit of creditors or any other dissolution,
winding up, liquidation or reorganization of the Company):
(1) the holders of all Senior Debt shall first be entitled to receive
payment in full of the principal thereof, the interest thereon and any other
amounts due thereon before the holders are entitled to receive payment on
account of the principal of or interest on or any other amounts due on the
Securities;
(2) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than securities of the
Company as reorganized or readjusted or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in this Article with
respect to the Securities, to the payment in full without diminution or
modification by such plan of all Senior Debt), to which the holders or the
Trustee would be entitled (other than in respect of amounts payable to the
Trustee pursuant to Section 607) except for the provisions of this Article,
shall be paid by the liquidating trustee or agent or other person making such a
payment or distribution, directly to the holders of Senior Debt (or their
representative(s) or trustee(s) acting on their behalf), ratably according to
the aggregate amounts remaining unpaid on account of the principal of or
interest on and other amounts due on the Senior Debt held or represented by
each, to the extent necessary to make payment in full of all Senior Debt
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Debt; and
(3) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities (other than securities of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment the payment of which is subordinate,
at least to the extent provided in this Article with respect to the Securities,
to the payment in full without diminution or modification by such plan of Senior
Debt), shall be received by the Trustee (other than in respect of amounts
payable to the Trustee pursuant to Section 607) or the holders before all Senior
Debt is paid in full, such payment or distribution shall be held in trust for
the benefit of, and be paid over to upon request by a holder of the Senior Debt,
the holders of the Senior Debt remaining unpaid (or their representatives) or
trustee(s) acting on their behalf, ratably as aforesaid, for application to the
payment of such Senior Debt until all such Senior Debt shall have been paid in
full, after giving effect to any concurrent payment or distribution to the
holders of such Senior Debt.
Subject to the payment in full of all Senior Debt, the holders shall be
subrogated to the rights of the holders of Senior Debt to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Debt until the principal of and interest on the Securities shall be paid
in full and, for purposes of such subrogation, no such payments or distributions
to the holders of Senior Debt of cash, property or securities which otherwise
would have been payable or distributable to holder shall, as between the
Company, its creditors other than the holders of Senior Debt, and the holders,
be deemed to be a payment by the Company to or on account of the Senior Debt, it
being understood that the provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the holders, on the one hand,
and the holders of Senior Debt, on the other hand.
58
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall (i) impair, as between the Company and
its creditors other than the holders of Senior Debt, the obligation of the
Company, which is absolute and unconditional, to pay to the holders the
principal of and interest on the Securities as and when the same shall become
due and payable in accordance with the terms of the Securities, (ii) affect the
relative rights of the holders and creditors of the Company other than holders
of Senior Debt or, as between the Company and the Trustee, the obligations of
the Company to the Trustee, or (iii) prevent the Trustee or the holders from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Debt in respect of cash, property and securities of the Company
received upon the exercise of any such remedy.
Upon distribution of assets of the Company referred to in this Article,
the Trustee, subject to the provisions of Section 601 hereof, and the holders
shall be entitled to rely upon a certificate of the liquidating trustee or agent
or other person making any distribution to the Trustee or to the holders for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt. Nothing contained in this Article or elsewhere in this
Indenture, or in any of the Securities, shall prevent the good faith application
by the Trustee of any moneys which were deposited with it hereunder, prior to
its receipt of written notice of facts which would prohibit such application,
for the purpose of the payment of or on account of the principal of or interest
on, the Securities unless, prior to the date on which such application is made
by the Trustee, the Trustee shall be charged with actual notice under Section
1303(d) hereof of the facts which would prohibit the making of such application.
(c) The provisions of this Article shall not be applicable to any
cash, properties or securities received by the Trustee or by any
holder when received as a holder of Senior Debt and nothing in
Section 613 hereof or elsewhere in this Indenture shall deprive
the Trustee or such holder of any of its rights as such holder.
(d) The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any
payment of money to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article. The Trustee, subject
to the provisions of Section 601 hereof, shall be entitled to
assume that no such fact exists unless the Company or any holder
of Senior Debt or any trustee therefor has given notice thereof to
the Trustee. Notwithstanding the provisions of this Article or any
other provisions of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any fact which would
prohibit the making of any payment of moneys to or by the Trustee
in
59
respect of the Securities pursuant to the provisions in this
Article, unless, and until three Business Days after, the Trustee
shall have received written notice thereof from the Company or any
holder or holders of Senior Debt or from any trustee therefor;
and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601 hereof, shall be entitled
in all respects conclusively to assume that no such facts exist;
provided that if on a date not less than three Business Days
immediately preceding the date upon which, by the terms hereof,
any such moneys may become payable for any purpose (including,
without limitation, the principal of or interest on any Security),
the Trustee shall not have received with respect to such moneys
the notice provided for in this Section 1303(d), then anything
herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such moneys and to
apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be
received by it on or after such prior date.
The Trustee shall be entitled to rely conclusively on the delivery to
it of a written notice by a person representing himself to be a holder of Senior
Debt (or a trustee on behalf of such holder) to establish that such notice has
been given by a holder of Senior Debt (or a trustee on behalf of any such holder
or holders). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such person, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
person under this Article, and, if such evidence is not furnished, the Trustee
may defer any payment to such person pending judicial determination as to the
right of such person to receive such payment; nor shall the Trustee be charged
with knowledge or the curing or waiving of any default of the character
specified in Section 1302 hereof or that any event or any condition preventing
any payment in respect of the Securities shall have ceased to exist, unless and
until the Trustee shall have received written notice to such effect.
(e) The provisions of this Section 1303 applicable to the Trustee
shall (unless the context requires otherwise) also apply to any
Paying Agent for the Company.
Section 1304. Reliance by Senior Debt on Subordination Provisions.
---------------------------------------------------
Each holder of any Security by his acceptance thereof acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration for each holder of any Senior Debt, whether
such Senior Debt was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such Senior
Debt, and such holder of Senior Debt shall be deemed conclusively to have relied
on such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Debt. Notice of any default in the payment of
any Senior Debt, except as expressly stated in this Article, and notice of
acceptance of the provisions hereof are
60
hereby expressly waived. Except as otherwise expressly provided herein, no
waiver, forbearance or release by any holder of Senior Debt under such Senior
Debt or under this Article shall constitute a release of any of the obligations
or liabilities of the Trustee or holders of the Securities provided in this
Article.
Section 1305. No Waiver of Subordination Provisions.
------------------------------------- -
Except as otherwise expressly provided herein, no right of any present
or future holder of any Senior Debt to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of, or notice to, the Trustee or the holders of the Securities, without
incurring responsibility to the holders of the Securities and without impairing
or releasing the subordination provided in this Article Thirteen or the
obligations hereunder of the holders of the Securities to the holders of Senior
Debt, do any one or more of the following: (i) change the manner, place or terms
of payment of, or renew or alter, Senior Debt, or otherwise amend or supplement
in any manner Senior Debt or any instrument evidencing the same or any agreement
under which Senior Debt is outstanding; (ii) sell, exchange, release or
otherwise dispose of any property pledged, mortgaged or otherwise securing
Senior Debt; (iii) release any person liable in any manner for the collection of
Senior Debt; and (iv) exercise or refrain from exercising any rights against the
Company or any other person.
Section 1306. Trustee's Relation to Senior Debt.
---------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article in respect of any Senior Debt at any time held
by it, to the same extent as any holder of Senior Debt, and nothing in Section
613 hereof or elsewhere in this Indenture shall deprive the Trustee of any of
its rights as such holder. Anything in this Indenture to the contrary
notwithstanding, amounts payable to the Trustee from time to time pursuant to
Section 607 shall be treated for purposes of this Article as if such amounts
constituted holdings of Senior Debt hereunder.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations, as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not owe any fiduciary duty to the holders
of Senior Debt but shall have only such obligations to such holders as are
expressly set forth in this Article.
Each holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and
61
all such purposes, including, in the event of any dissolution, winding up or
liquidation or reorganization under any applicable bankruptcy law of the Company
(whether in bankruptcy, insolvency or receivership proceedings or otherwise),
the timely filing of a claim for the unpaid balance of such holder's Securities
in the form required in such proceedings and the causing of such claim to be
approved. If the Trustee does not file a claim or proof of debt in the form
required in such proceedings prior to 30 days before the expiration of the time
to file such claims or proofs, then any holder or holders of Senior Debt or
their representative or representatives shall have the right to demand, xxx for,
collect, receive and receipt for the payments and distributions in respect of
the Securities which are required to be paid or delivered to the holders of
Senior Debt as provided in this Article and to file and prove all claims
therefor and to take all such other action in the name of the holders or
otherwise, as such holders of Senior Debt or representative thereof may
determine to be necessary or appropriate for the enforcement of the provisions
of this Article. Anything in this Indenture to the contrary notwithstanding,
amounts payable to the Trustee from time to time pursuant to Section 607 shall
be treated for purposes of this Article as if such amounts constituted Senior
Debt hereunder.
Section 1307. Other Provisions Subject Hereto.
-------------------------------
Except as expressly stated in this Article, notwithstanding anything
contained in this Indenture to the contrary, all the provisions of this
Indenture and the Securities are subject to the provisions of this Article.
However, nothing in this Article shall apply to or adversely affect the claims
of, or payment to, the Trustee pursuant to Section 607. Notwithstanding the
foregoing, the failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article Thirteen shall not
be construed as preventing the occurrence of an Event of Default under Section
501.
Section 1308. Limitation on Issuance of Other Subordinated Debt.
-------------------------------------------------
The Company shall not issue, assume, guarantee, incur or otherwise
become liable, directly or indirectly, for any Indebtedness Subordinate or
junior in ranking in any respect to any Senior Debt unless such Indebtedness is
Senior Subordinated Debt or is expressly subordinated in right of payment to
Senior Subordinated Debt.
ARTICLE FOURTEEN
Conversion of Securities
Section 1401. Applicability of Article.
------------------------
If pursuant to Section 301 provision is made for the conversion of
Securities pursuant to this Article Fourteen, then the provisions of this
Article Fourteen, with such modifications thereto as may be specified pursuant
to Section 301 with respect to any Securities, shall be applicable to the
Securities of such series.
Section 1402. Conversion Privilege and Conversion Price.
-----------------------------------------
A holder of a Security may convert the principal amount thereof (or any
portion thereof that is an integral multiple of $1,000 or such other minimum
amount as may be specified
62
for such Security) into fully paid and nonassessable shares of Common Stock of
the Company at any time following the Issuance Date and prior to the close of
business on the Business Day immediately preceding the maturity date of the
Security at the Conversion Price then in effect, except that, with respect to
any Security called for redemption, such conversion right shall terminate at the
close of business on the Business Day immediately preceding the redemption date
(unless the Company shall default in making the redemption payment when it
becomes due, in which case the conversion right shall terminate on the date such
default is cured), The number of shares of Common Stock issuable upon conversion
of a Security is determined by dividing the principal amount of the Security
converted by the conversion price in effect on the Conversion Date (the
"Conversion Price").
The initial Conversion Price shall be set forth in the applicable
Securities and is subject to adjustment as provided in this Article Fourteen.
Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of it, A holder of Securities is
not entitled to any rights of a holder of Common Stock until such holder of
Securities has converted such Securities into Common Stock, and only to the
extent that such Securities are deemed to have been converted into Common Stock
under this Article Fourteen.
Section 1403. Conversion Procedure.
--------------------
To convert a Security, a holder must satisfy the requirements set forth
in the Securities, The date on which the holder satisfies all of those
requirements is the conversion date (the "Conversion Date"). As soon as
practicable after the Conversion Date, the Company shall deliver to the holder
through the Conversion Agent a certificate for the number of whole shares of
Common Stock issuable upon the conversion and a check for any fractional share
determined pursuant to Section 1404, The person in whose name the certificate is
registered shall become the stockholder of record on the Conversion Date and, as
of such date, such person's rights as a Holder with respect to the converted
Security shall cease; provided, however, that no surrender of a Security on any
date when the stock transfer books of the Company shall be closed shall be
effective to constitute the person entitled to receive the shares of Common
Stock upon such conversion as the stockholder of record of such shares of Common
Stock on such date, but such surrender shall be effective to constitute the
person entitled to receive such shares of Common Stock as the stockholder of
record thereof for all purposes at the close of business on the next succeeding
day on which such stock transfer books are open; provided further, however, that
such conversion shall be at the Conversion Price in effect on the date that such
Security shall have been surrendered for conversion, as if the stock transfer
books of the Company had not been closed.
No payment or adjustment will be made for accrued and unpaid interest
on a converted Security or for dividends or distributions on shares of Common
Stock issued upon conversion of a Security, but if any holder surrenders a
Security for conversion after the close of business on the record date for the
payment of an installment of interest and prior to the opening of business on
the next interest payment date, then, notwithstanding such conversion, the
interest payable on such interest payment date shall be paid to the holder of
such Security on such record date. In such event, unless such Security has been
called for redemption on or prior to such
63
interest payment date, such Security, when surrendered for conversion, must be
accompanied by payment in funds acceptable to the Company of an amount equal to
the interest payable on such interest payment date on the portion so converted.
If a holder converts more than one Security at the same time, the
number of whole shares of Common Stock issuable upon the conversion shall be
based on the total principal amount of Securities converted.
Upon surrender of a Security that is converted in part, the Trustee
shall authenticate for the holder a new Security equal in principal amount to
the unconverted portion of the Security surrendered,
Section 1404. Fractional Shares.
-----------------
The Company will not issue fractional shares of Common Stock upon
conversion of a Security. In lieu thereof, the Company will pay an amount in
cash based upon the Daily Market Price of the Common Stock on the trading day
prior to the date of conversion.
Section 1405. Taxes on Conversion.
-------------------
The issuance of certificates for shares of Common Stock upon the
conversion of any Security shall be made without charge to the converting Holder
for such certificates or for any tax in respect of the issuance of such
certificates, and such certificates shall be issued in the respective names of,
or in such names as may be directed by, the holder or holders of the converted
Security; provided, however, that in the event that certificates for shares of
Common Stock are to be issued in a name other than the name of the holder of the
Security converted, such Security, when surrendered for conversion, shall be
accompanied by an instrument of assignment or transfer, in form satisfactory to
the Company, duly executed by the registered holder thereof or his duly
authorized attorney; and provided further, however, that the Company shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name other
than that of the holder of the converted Security, and the Company shall not be
required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid or is not applicable.
Section 1406. Company to Provide Stock.
------------------------
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, solely for
the purpose of issuance upon conversion of Securities as herein provided, a
sufficient number of shares of Common Stock to permit the conversion of all
outstanding Securities for shares of Common Stock.
All shares of Common Stock which may be issued upon conversion of the
Securities shall be duly authorized, validly issued, fully paid and
nonassessable when so issued.
64
Section 1407. Adjustment of Conversion Price.
------------------------------
The Conversion Price shall be subject to adjustment from time to time
as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common
Stock to holders of Common Stock, (2) make a distribution in
shares of Common Stock to holders of Common Stock, (3) subdivide
its outstanding shares of Common Stock into a greater number of
shares of Common Stock or (4) combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock, the
Conversion Price in effect immediately prior to such action shall
be adjusted so that the holder of any Security thereafter
surrendered for conversion shall be entitled to receive the number
of shares of Common Stock which he would have owned immediately
following such action had such Securities been converted
immediately prior thereto. Any adjustment made pursuant to this
subsection (a) shall become effective immediately after the record
date in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a
subdivision or combination.
(b) In case the Company shall issue rights or warrants to
substantially all holders of Common Stock entitling them (for a
period commencing no earlier than the record date for the
determination of holders of Common Stock entitled to receive such
rights or warrants and expiring not more than 45 days after such
record date) to subscribe for or purchase shares of Common Stock
(or securities convertible into Common Stock) at a price per share
less than the Current Market Price (as determined pursuant to
subsection (f) below) of the Common Stock on such record date, the
Conversion Price shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect
immediately prior to such record date by a fraction of which the
numerator shall be the number of shares of Common Stock
outstanding on such record date, plus the number of shares of
Common Stock which the aggregate offering price of the offered
shares of Common Stock (or the aggregate conversion price of the
convertible securities so offered) would purchase at such Current
Market Price, and of which the denominator shall be the number of
shares of Common Stock outstanding on such record date plus the
number of additional shares of Common Stock offered (or into which
the convertible securities so offered are convertible). Such
adjustments shall become effective immediately after such record
date.
(c) In case the Company shall distribute to all holders of Common
Stock shares of any class of Capital Stock of the Company other
than Common Stock, evidences of indebtedness or other assets
(other than cash dividends out of current or retained earnings),
or shall distribute to substantially all holders of Common Stock
rights or warrants to subscribe for securities (other than those
Securities referred to in subsection (b) above), then in
65
each such case the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of such
distribution by a fraction of which the numerator shall be the
Current Market Price (determined as provided in subsection (f)
below) of the Common Stock on the record date mentioned below less
the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive evidence of
such fair market value and described in a Board Resolution) of the
portion of the assets so distributed or of such subscription
rights or warrants applicable to one share of Common Stock, and of
which the denominator shall be such Current Market Price of the
Common Stock. Such adjustment shall become effective immediately
after the record date for the determination of the holders of
Common Stock entitled to receive such distribution.
Notwithstanding the foregoing, in case the Company shall issue
rights or warrants to subscribe for additional shares of the
Company's capital stock (other than those referred to in
subsection (b) above) ("Rights") to substantially all holders of
Common Stock, the Company may, in lieu of making any adjustment
pursuant to this Section 1407, make proper provision so that each
holder of a Security who converts such Security (or any portion
thereof) after the record date for such distribution and prior to
the expiration or redemption of the Rights shall be entitled to
receive upon such conversion, in addition to the shares of Common
Stock issuable upon such conversion (the "Conversion Shares"), a
number of Rights to be determined as follows: (i) if such
conversion occurs on or prior to the date for the distribution to
the holders of Rights of separate certificates evidencing such
Rights (the "Distribution Date"), the same number of Rights to
which a holder of a number of shares of Common Stock equal to the
number of Conversion Shares is entitled at the time of such
conversion in accordance with the terms and provisions of and
applicable to the Rights; and (ii) if such conversion occurs after
the Distribution Date, the same number of Rights to which a holder
of the number of shares of Common Stock into which the principal
amount of the Security so converted was convertible immediately
prior to the Distribution Date would have been entitled on the
Distribution Date in accordance with the terms and provisions of
and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time
distribute to all holders of its Common Stock cash (including any
distributions of cash out of current or retained earnings of the
Company but excluding any cash that is distributed as part of a
distribution requiring a Conversion Price adjustment pursuant to
paragraph (c) of this Section) in an aggregate amount that,
together with the sum of (x) the aggregate amount of any other
distributions to all holders of its Common Stock made in cash plus
(y) all Excess Payments, in each case made within the 12 months
preceding the date fixed for determining the stockholders entitled
to such distribution (the "Distribution Record Date") and in
respect of which no Conversion Price adjustment pursuant to
paragraphs (c) or (e) of
66
this Section or this paragraph (d) has been made, exceeds 15% of
the product of the Current Market Price per share (determined as
provided in paragraph (f) of this Section) of the Common Stock on
the Distribution Record Date multiplied by the number of shares of
Common Stock outstanding on the Distribution Record Date
(excluding shares held in the treasury of the Company), the
Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying such Conversion Price in effect
immediately prior to the effectiveness of the Conversion Price
reduction contemplated by this paragraph (d) by a fraction of
which the numerator shall be the Current Market Price per share
(determined as provided in paragraph (f) of this Section) of the
Common Stock on the Distribution Record Date less the amount of
such cash and other consideration (including any Excess Payments)
so distributed applicable to one share of Common Stock (equal to
the aggregate amount of such cash and other consideration
(including any Excess Payments) divided by the number of shares of
Common Stock outstanding on the Distribution Record Date) and the
denominator shall be such Current Market Price per share
(determined as provided in paragraph (f) of this Section) of the
Common Stock on the Distribution Record Date, such reduction to
become effective immediately prior to the opening of business on
the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the
Company or any Subsidiary of the Company for all or any portion of
the Common Stock shall be consummated, if an Excess Payment is
made in respect of such tender offer or other negotiated
transaction and the amount of such Excess Payment, together with
the sum of (x) the aggregate amount of all Excess Payments plus
(y) the aggregate amount of all distributions to all holders of
the Common Stock made in cash (including any distributions of cash
out of current or retained earnings of the Company), in each case
made within the 12 months preceding the date of payment of such
current negotiated transaction consideration or expiration of such
current tender offer, as the case may be (the "Purchase Date"),
and as to which no adjustment pursuant to paragraph (c) or
paragraph (d) of this Section or this paragraph (e) has been made,
exceeds 15% of the product of the Current Market Price per share
(determined as provided in paragraph (f) of this Section) of the
Common Stock on the Purchase Date multiplied by the number of
shares of Common Stock outstanding (including any tendered shares
but excluding any shares held in the treasury of the Company or
any Subsidiary of the Company) on the Purchase Date, the
Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying such Conversion Price in effect
immediately prior to the effectiveness of the Conversion Price
reduction contemplated by this paragraph (e) by a fraction of
which the numerator shall be the Current Market Price per share
(determined as provided in paragraph (f) of this Section) of the
Common Stock on the Purchase Date less the amount of such Excess
Payments and such cash
67
distributions, if any, applicable to one share of Common Stock
(equal to the aggregate amount of such Excess Payments and such
cash distributions divided by the number of shares of Common Stock
outstanding on the Purchase Date) and the denominator shall be
such Current Market Price per share (determined as provided in
paragraph (f) of this Section) of the Common Stock on the Purchase
Date, such reduction to become effective immediately prior to the
opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date
shall be deemed to be the average of the Daily Market Prices for
the shorter of (i) 30 consecutive Business Days ending on the last
full Trading Day on the exchange or market referred to in
determining such Daily Market Prices prior to the time of
determination or (ii) the period commencing on the date next
succeeding the first public announcement of the issuance of such
rights or such warrants or such other distribution or such
negotiated transaction through such last full trading day on the
exchange or market referred to in determining such Daily Market
Prices prior to the time of determination.
(g) "Excess Payment" means the excess of (A) the aggregate of the cash
and fair market value of other consideration paid by the Company
or any of its Subsidiaries with respect to the shares acquired in
a tender offer or other negotiated transaction over (B) the Daily
Market Price on the Trading Day immediately following the
completion of such tender offer or other negotiated transaction
multiplied by the number of acquired shares.
(h) In any case in which this Section 1407 shall require that an
adjustment be made immediately following a record date for an
event, the Company may elect to defer, until such event, issuing
to the holder of any Security converted after such record date the
shares of Common Stock and other Capital Stock of the Company
issuable upon such conversion over and above the shares of Common
Stock and other Capital Stock of the Company issuable upon such
conversion only on the basis of the Conversion Price prior to
adjustment; and, in lieu of the shares the issuance of which is so
deferred, the Company shall issue or cause its transfer agents to
issue due bills or other appropriate evidence of the right to
receive such shares.
Section 1408. No Adjustment.
-------------
No adjustment in the Conversion Price shall be required until
cumulative adjustments amount to 1% or more of the Conversion Price as last
adjusted; provided, however, that any adjustments which by reason of this
Section 1408 are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Article
Fourteen shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be. No adjustment need be made for rights to purchase
Common Stock pursuant to a Company plan for reinvestment of dividends or
interest. No adjustment need be made for a change in the par value or no par
value of the Common Stock.
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Section 1409. Other Adjustments.
-----------------
(a) In the event that, as a result of an adjustment made pursuant to
Section 1407 above, the holder of any Security thereafter
surrendered for conversion shall become entitled to receive any
shares of Capital Stock of the Company other than shares of its
Common Stock, thereafter the Conversion Price of such other shares
so receivable upon conversion of any Securities shall be subject
to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Common
Stock contained in this Article Fourteen.
(b) In the event that shares of Common Stock are not delivered after
the expiration of any of the rights or warrants referred to in
Section 1407(b) and Section 1407(c) hereof, the Conversion Price
shall be readjusted to the Conversion Price which would otherwise
be in effect had the adjustment made upon the issuance of such
rights or warrants been made on the basis of delivery of only the
number of shares of Common Stock actually delivered.
Section 1410. Adjustments for Tax Purposes.
----------------------------
The Company may, at its option, make such reductions in the Conversion
Price, in addition to those required by Section 1407 above, as it determines to
be advisable in order that any stock dividend, subdivision of shares,
distribution of rights to purchase stock or securities or distribution of
securities convertible into or exchangeable for stock made by the Company to its
stockholders will not be taxable to the recipients thereof.
Section 1411. Adjustments by the Company.
--------------------------
The Company from time to time may, to the extent permitted by law,
reduce the Conversion Price by any amount for any period of at least 20 days, in
which case the Company shall give at least 15 days' notice of such reduction in
accordance with Section 1412, if the Board of Directors has made a determination
that such reduction would be in the best interests of the Company, which
determination shall be conclusive.
Section 1412. Notice of Adjustment.
--------------------
Whenever the Conversion Price is adjusted, the Company shall promptly
mail to Holders at the addresses appearing on the Security Registrar's books a
notice of the adjustment and file with the Trustee an Officers' Certificate
briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence of the correctness of such
adjustment.
69
Section 1413. Notice of Certain Transactions.
------------------------------
In the event that:
(1) the Company takes any action which would require an adjustment in
the Conversion Price;
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 1414; or
(3) there is a dissolution or liquidation of the Company; a holder of a
Security may wish to convert such Security into shares of Common Stock prior to
the record date for or the effective date of the transaction so that he may
receive the rights, warrants, securities or assets which a holder of shares of
Common Stock on that date may receive, Therefore, the Company shall mail to
Noteholders at the addresses appearing on the Security Registrar's books and the
Trustee a notice stating the proposed record or effective date, as the case may
be. The Company shall mail the notice at least 15 days before such date;
however, failure to mail such notice or any defect therein shall not affect the
validity of any transaction referred to in clause (1), (2) or (3) of this
Section 1413.
Section 1414. Effect of Reclassifications, Consolidations, Mergers
----------------------------------------------------
or Sales on Conversion Privilege.
---------------------------------
If any of the following shall occur, namely: (i) any reclassification
or change of outstanding shares of Common Stock issuable upon conversion of
Securities (other than a change in par value, or from par value to no par value,
or from no par value to par value, or as a result of a subdivision or
combination), (ii) any consolidation or merger to which the Company is a party
other than a merger in which the Company is the continuing corporation and which
does not result in any reclassification of, or change (other than a change in
name, or par value, or from par value to no par value, or from no par value to
par value or as a result of a subdivision or combination) in, outstanding shares
of Common Stock or (iii) any sale or conveyance of all or substantially all of
the property or business of the Company as an entirety, then the Company, or
such successor or purchasing corporation, as the case may be, shall, as a
condition precedent to such reclassification, change, consolidation, merger,
sale or conveyance, execute and deliver to the Trustee a supplemental indenture
in form satisfactory to the Trustee providing that the holder of each Security
then outstanding shall have the right to convert such Security into the kind and
amount of shares of stock and other securities and property (including cash)
receivable upon such reclassification, change, consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock deliverable upon
conversion of such Security immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments of the Conversion Price which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Price
provided for in this Article Fourteen. The foregoing, however, shall not in any
way affect the right a holder of a Security may otherwise have, pursuant to
clause (ii) of the last sentence of subsection (c) of Section 1407, to receive
Rights upon conversion of a Security. If, in the case of any such consolidation,
merger, sale or conveyance, the stock or other
70
securities and property (including cash) receivable thereupon by a holder of
Common Stock includes shares of stock or other securities and property of a
corporation other than the successor or purchasing corporation, as the case may
be, in such consolidation, merger, sale or conveyance, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the holders of the
Securities as the Board of Directors of the Company shall reasonably consider
necessary by reason of the foregoing. The provision of this Section 1414 shall
similarly apply to successive consolidations, mergers, sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 1414, the Company shall promptly file with the Trustee
an Officers' Certificate briefly stating the reasons therefor, the kind or
amount of shares of stock or securities or property (including cash) receivable
by holders of the Securities upon the conversion of their Securities after any
such reclassification, change, consolidation, merger, sale or conveyance and any
adjustment to be made with respect thereto.
Section 1415. Trustee's Disclaimer.
--------------------
The Trustee has no duty to determine when an adjustment under this
Article Fourteen should be made, how it should be made or what such adjustment
should be, but may accept as conclusive evidence of the correctness of any such
adjustment, and shall be protected in relying upon the Officers' Certificate
with respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 1412, The Trustee makes no representation as to the validity
or value of any securities or assets issued upon conversion of Securities, and
the Trustee shall not be responsible for the Company's failure to comply with
any provisions of this Article Fourteen.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 14.14, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 14.14.
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance
Section 1501. Applicability of Article; Company's Option to Effect
----------------------------------------------------
Defeasance or Covenant Defeasance.
----------------------------------
Unless, pursuant to Section 301, provision is made that either or both
of (a) defeasance of the Securities of a series under Section 1502 or (b)
covenant defeasance of the Securities of a series under Section 1503 shall not
apply to the Securities of a series, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
Fifteen, with such modifications thereto as may be specified pursuant to Section
301 with respect to any Securities, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any time,
with respect to the Securities of such series, elect to have either Section 1502
(if applicable) or Section 1503 (if applicable) applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article Fifteen.
71
Section 1502. Defeasance and Discharge.
------------------------
Upon the Company's exercise of its option to have this Section applied
to any series of Securities, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities of such series,
and the provisions of Article Thirteen hereof shall cease to be effective, on
and after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series which shall thereafter
be deemed to be "Outstanding" only for the purposes of the Sections of this
Indenture referred to in clauses (A) and (B) of this Section, and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Securities of such series to
receive, solely from the trust fund described in Section 1504 as more fully set
forth in such Section, payments of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 305, 306, 1002 and
1003 and such obligations as shall be ancillary thereto, (C) the rights, powers,
trusts, duties, immunities and other provisions in respect of the Trustee
hereunder and the obligations of the Company in connection therewith and (D)
this Article Fifteen. Subject to compliance with this Article Fifteen, the
Company may exercise its option under this Section 1502 notwithstanding the
prior exercise of its option under Section 1503 with respect to the Securities
of such series. Following a defeasance, payment of such Securities may not be
accelerated because of an Event of Default.
Section 1503. Covenant Defeasance.
-------------------
Upon the Company's exercise of its option (if any) to have this Section
applied to any series of Securities, the Company shall be released from its
obligations under Section 801 (and any covenant made applicable to such
Securities pursuant to Section 301), the occurrence of an event specified in
Section 501(4) (with respect to Section 801 or any such covenant) (and any other
Event of Default applicable to such Securities that are determined pursuant to
Section 301 to be subject to this provision) shall not be deemed to be an Event
of Default with respect to the Outstanding Securities of such series and the
provisions of Article Thirteen hereof shall cease to be effective on and after
the date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and such Securities shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with
Section 801 (and any other covenant made applicable to such Security pursuant to
Section 301 and any such Events of Default), but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of such
series, 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
72
reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of any reference in any such Section or such other
covenant to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Notwithstanding the defeasance by the Company of its obligations under Section
801, any successor shall be required to assume the Company's obligations under
Section 607 as a condition to such succession.
Section 1504. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions precedent to application of
either Section 1502 or Section 1503 to the Outstanding Securities of or within
such series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 609 who shall agree to comply with the provisions of this Article
Fifteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (A) money in an amount (in
such currency, currencies or currency units in which such Securities are then
specified as payable at Maturity), or (B) U.S. 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, without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Maturity of such principal,
premium, if any, or interest and (ii) 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 such Securities.
Before such a deposit the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or dates in accordance
with Article Eleven, which shall be given effect in applying the foregoing. For
this purpose, "U.S. 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, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depositary 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
U.S. Government Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the account of
the holder of such depositary 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 depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depositary receipt.
(2) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to the
Securities of such series shall have
73
occurred and be continuing (A) on the date of such deposit or (B) insofar as
subsections 501(5) and (6) are concerned, at any time during the period ending
on the 91st day after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period applicable to the
Company in respect of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee for the Securities of such series to have a conflicting interest as
defined in Section 608 or for purposes of the Trust Indenture Act with respect
to any Securities of the Company or (B) result in the trust arising from such
deposit to constitute, unless it is qualified as, a regulated investment company
under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by which it
is bound.
(5) In the case of an election under Section 1502, 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 of such series will not recognize income, gain or loss for federal
income tax purposes as a result of such defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred.
(6) In the case of an election under Section 1503, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such covenant
defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1502 or
the covenant defeasance under Section 1503 (as the case may be) have been
complied with.
Section 1505. Deposited Money and U.S. Government Obligations to be
------------------------------------------------------
Held in Trust; Other Miscellaneous Provisions.
----------------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (collectively, for
purposes of this Section 1505, the "Trustee") pursuant
74
to Section 1504 in respect of the Outstanding Securities of such series shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Securities and this Indenture, to the payment, either directly or through
any Paying Agent (but not including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities, of all sums due
and to become due thereon in respect of principal (and premium, if any) and
interest, but such money need not be segregated from other funds except to the
extent required by law. Money so held in trust shall not be subject to the
provisions of Article Thirteen.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 1504 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1504 which in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1506. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1505 by reason of any order or judgment or any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Fifteen until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 1505; provided, however, that
if the Company makes any payment of principal of (and premium, if any) or
interest on any such Security following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or the Paying Agent.
Section 1507. Qualifying Trustee.
------------------
Any trustee appointed pursuant to Section 1504 for the purpose of
holding trust funds deposited pursuant to that Section shall be appointed under
any agreement in form acceptable to the Trustee and shall provide to the Trustee
a certificate of such trustee, upon which certificate the Trustee shall be
entitled to conclusively rely, that all conditions precedent provided for herein
to the related defeasance or covenant defeasance have been complied with. In no
event shall the Trustee be liable for any acts or omissions of said trustee.
75
ARTICLE SIXTEEN
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
Section 1601. Exemption from Individual Liability.
-----------------------------------
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer,
director, or employee, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations
of the Company, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, stockholders, officers,
directors, or employees, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer, director, or employee,
as such, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom, are hereby expressly
waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issue of such Securities.
*****
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.
76
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
TALK AMERICA HOLDINGS, INC.
By:
---------------------------------------------
Name: Xxxxxxxx X. Lawn IV
Title: Executive Vice President--
General Counsel and Secretary
WILMINGTON TRUST COMPANY
By:
---------------------------------------------
Name:
Title:
77
STATE OF ____________ )
)
COUNTY OF __________ )
On ____________, ___ 2002, ___ before me, ___ ____________, ___ Notary
Public, ___ personally ___ appeared __________________, personally known to me
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
STATE OF PENNSYLVANIA )
)
COUNTY OF BUCKS )
On the _____ day of ___________, 2002, before me personally came
Xxxxxxxx X. Lawn IV, to me known, who, being by me duly sworn, did depose and
say that he is the Executive Vice President--General Counsel and Secretary of
Talk America Holdings, Inc., one of the companies described in and which
executed the foregoing instrument; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority of the Board of Directors of said corporation.
Notary Public
78
EXHIBIT A
---------
Form of Face of Security.
------------------------
[insert any legend required by the Internal Revenue Code and the
----------------------------------------------------------------
regulations thereunder.]
------------------------
[if the Security is a Book-Entry Security, insert -- UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
TALK AMERICA HOLDINGS, INC.
---------------------------
No. $
------------
CUSIP No._________
Talk America Holdings, Inc., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to, or registered assigns, the principal sum of
_______ Dollars on [if the Security is to bear interest prior to Maturity,
insert, and to pay interest thereon from or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on _____________ and in each year, commencing _____________, at the
rate of % per annum, until the principal hereof is paid or made available
for payment [if applicable, insert -- and (to the extent that the payment of
such interest shall be legally enforceable) at the rate of % per annum
on any overdue principal and premium and on any overdue installment of
interest]. [if the Security is designated as Pay-in-Kind, insert-- provided,
however, that through and including __________, 200_, the Company may, at its
option and in its sole discretion, in lieu of the payment of ___________ of the
interest due on the Securities on any interest payment date through the
issuance of additional Securities in the aggregate principal amount equal to
such amount of
A-1
interest that would otherwise be payable with respect to the Securities in cash.
After ______________, 200_, the Company shall pay interest on the Securities in
cash. The Company shall notify the Trustee (as defined below) in writing of its
election to pay interest on the Securities through the issuance of additional
Securities not less than ________ nor more than ________ days prior to the
record date for the interest payment date on which additional Securities will be
issued. Additional Securities shall be governed by, and entitled to the benefits
of, the Indenture (as defined below) and shall be subject to the terms of the
Indenture and shall be subject to the same terms (including the rate of interest
from time to time payable thereon) as the Securities (except, as the case may
be, with respect to the issuance date and aggregate principal amount).] The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the ______________ or __________ (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. [Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ______________, [if
applicable in the case of Pay-in-Kind Securities, insert -- with respect to cash
interest payments,] in such coin or currency of [the United States of America]
as at the time of payment is legal tender for payment of public and private
debts [if applicable, insert --; provided, however, that at the option of the
Company payment of [if applicable, insert --cash] interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or by wire transfer to an account maintained by
the Person entitled thereto as specified in the Security Register, provided that
such Person shall have given the Trustee written wire instructions at least five
Business Days prior to the applicable Interest Payment Date.]
A-2
[If the Security is payable in a foreign currency, insert -- the
appropriate provision.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
TALK AMERICA HOLDINGS, INC.
By
----------------------------------
Title:
Attest:
----------------------------
Title:
Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of March __, 2002 (herein called the
"Indenture"), between the Company and [ ], as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior Debt
and the Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This Security is one of the
series designated on the face hereof [,limited in aggregate principal amount to
$].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, such 30
or 60 days, as the case may be, to be counted from the date notice is mailed,
[if applicable, insert -- (1) on _______________ in any year commencing with the
year ___________ and ending with the year ____________ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after _________, 19 ], as a whole
or in part, at the election of the Company, [at Redemption Prices determined as
follows:] [at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before ________%, and if redeemed] during
the 12-month period beginning _________ of the years indicated,
A-3
Redemption Redemption
---------- ----------
Year Price Year Price
---- ----- ---- -----
and thereafter at a Redemption Price equal to % of the principal amount,]
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates or Special Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable insert -- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, such 30
or 60 days, as the case may be, to be counted from the date notice is mailed,
(1) on __________ in any year commencing with the year and ending with the
year __________ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning
of the years indicated,
Redemption Price Redemption Price for
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- ---------------------
and thereafter at a Redemption Price equal to _______% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates or Special Record Dates referred to on the face hereof, all
as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to ________
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than ________ % per annum.]
[The sinking fund for this series provides for the redemption on in
each year beginning with the year _______ and ending with the year of _________
[not less than $ ("mandatory sinking fund") and not more than] $___________
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking
fund payments otherwise required to be made [in the inverse order in which they
become due].]
A-4
[If the Securities do not have a sinking fund, then insert -- the
Securities do not have the benefit of any sinking fund obligations.]
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effect the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes.
[If the Security is subject to redemption, insert -- In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If the Security is not subject to redemption, insert -- The Securities
of this series are not redeemable prior to Stated Maturity.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [and/or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to - insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
[If the Security is an Indexed Security, insert -- the appropriate
provision.]
[If the Security is convertible, insert -- Subject to and upon
compliance with the provisions of the Indenture, the Holder of this Security is
entitled, at its option, at any time on or after the opening of business on
__________, 2002 and on or before the close of business on
A-5
__________, or in case this Security or a portion hereof is called for
redemption, then in respect of this Security or such portion hereof until and
including, but (unless the Company defaults in making the payment due upon
redemption) not after, the close of business on the Redemption Date, to convert
this Security (or any portion of the principal amount hereof which is $
__________or an integral multiple thereof), at the principal amount hereof, or
of such portion, into fully paid and nonassessable shares (calculated as to each
conversion to the nearest 1/100 of a share) of [Common Stock] [Preferred Stock]
of the Company at a conversion price equal to $_________ aggregate principal
amount of Securities for each share of [Common Stock] [Preferred Stock] (or at
the current adjusted conversion price if an adjustment has been made as provided
in the Indenture) by surrender of this Security, duly endorsed or assigned to
the Company or in blank, to the Company at its office or agency in
______________________, accompanied by written notice to the Company that the
Holder hereof elects to convert this Security, of if less than the entire
principal amount hereof is to be converted, the portion hereof to be converted,
and, in case such surrender shall be made during the period from the close of
business on any Regular Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date (unless this Security of
the portion hereof being converted has been called for redemption on a
Redemption Date within such period), also accompanied by payment in immediately
available funds or other funds acceptable to the Company of an amount equal to
the interest payable on such Interest Payment Date on the principal amount of
this Security then being converted. Subject to the aforesaid requirement for
payment and, in the case of a conversion after the Regular Record Date next
preceding any Interest Payment Date and on or before such Interest Payment Date,
to the right of the Holder of this Security (or any Predecessor Security) of
record at such Regular Record Date to receive an installment of interest (with
certain exceptions provided in the Indenture), no payment or adjustment is to be
made on conversion for interest accrued hereon or for dividends on the Common
Stock issued on conversion. No fractions of shares or scrip representing
fractions of shares will be issued on conversion, but instead of any fractional
interest the Company shall pay a cash adjustment as provided in the Indenture.
The conversion price is subject to adjustment as provided in the Indenture. In
addition, the Indenture provides that in case of certain consolidations or
mergers to which the Company is a party or the transfer of substantially all of
the assets of the Company, the Indenture shall be amended, without the consent
of any Holders of Securities, so that this Security, if then outstanding, will
be convertible thereafter, during the period this Security shall be convertible
as specified above, only into the kind and amount of securities, cash and other
property receivable upon the consolidation, merger or transfer by a holder of
the number of shares of [Common Stock] [Preferred Stock] into which this
Security might have been converted immediately prior to such consolidation,
merger or transfer (assuming such holder of [Common Stock] [Preferred Stock]
failed to exercise any rights of election and received per share the kind and
amount received per share by a plurality of non-electing shares), assuming, if
such consolidation, merger or transfer is prior to [insert date upon which the
Securities first become convertible], that this Security was convertible at the
time of such consolidation, merger or transfer at the initial conversion price
specified above as adjusted from [date of issuance], to such time pursuant to
the Indenture.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
adversely affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in
A-6
principal amount of the Securities at the time Outstanding of each series to be
adversely affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $________ [and any integral multiple
thereof]. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer, director or employee, as such, past, present or future, of
the Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
Prior to due presentment of this 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 this Security is registered as the owner hereof for all
purposes (subject to Section 307 of the Indenture), whether or not this Security
be overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
A-7
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture. The Indenture and
this Security shall be governed by and construed in accordance with the laws of
the State of New York without regard to the conflicts of laws principles
thereof.
A-8
