EXHIBIT 4.1
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THE INTERPUBLIC GROUP OF COMPANIES, INC.
AND
THE BANK OF NEW YORK
TRUSTEE
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FORM OF SENIOR DEBT INDENTURE
DATED AS OF ____________, 2000
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TABLE OF CONTENTS
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PAGE
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS......................................................................3
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS............................................14
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE..........................................15
SECTION 1.04. ACTS OF HOLDERS.................................................................16
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY...........................................17
SECTION 1.06. NOTICE TO HOLDERS; WAIVER.......................................................18
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT...............................................19
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS........................................19
SECTION 1.09. SUCCESSORS AND ASSIGNS..........................................................19
SECTION 1.10. SEPARABILITY CLAUSE.............................................................19
SECTION 1.11. BENEFITS OF INDENTURE...........................................................19
SECTION 1.12. GOVERNING LAW...................................................................19
SECTION 1.13. LEGAL HOLIDAYS..................................................................19
SECTION 1.14. NO RECOURSE AGAINST OTHERS......................................................20
SECTION 1.15. JUDGMENT CURRENCY...............................................................20
ARTICLE 2
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY.................................................................21
SECTION 2.02. FORM OF FACE OF SECURITY........................................................21
SECTION 2.03. FORM OF REVERSE OF SECURITY.....................................................25
SECTION 2.04. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.................................31
SECTION 2.05. SECURITIES IN GLOBAL FORM.......................................................31
SECTION 2.06. FORM OF LEGEND FOR THE SECURITIES IN GLOBAL FORM................................32
ARTICLE 3
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES............................................32
SECTION 3.02. DENOMINATIONS...................................................................36
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING..................................36
SECTION 3.04. TEMPORARY SECURITIES............................................................38
SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.............................39
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES................................42
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED..................................43
PAGE
SECTION 3.08. PERSONS DEEMED OWNERS...........................................................44
SECTION 3.09. CANCELLATION....................................................................45
SECTION 3.10. COMPUTATION OF INTEREST.........................................................45
SECTION 3.11. CUSIP NUMBER....................................................................45
SECTION 3.12. WIRE TRANSFERS..................................................................45
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE.........................................46
SECTION 4.02. APPLICATION OF TRUST MONEY......................................................47
ARTICLE 5
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT...............................................................47
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..............................49
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.................50
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM................................................51
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.....................52
SECTION 5.06. APPLICATION OF MONEY COLLECTED..................................................52
SECTION 5.07. LIMITATION ON SUITS.............................................................53
SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST..........................................................................53
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES..............................................54
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE..................................................54
SECTION 5.11. DELAY OR OMISSION NOT WAIVER....................................................54
SECTION 5.12. CONTROL BY HOLDERS..............................................................54
SECTION 5.13. WAIVER OF PAST DEFAULTS.........................................................55
SECTION 5.14. UNDERTAKING FOR COSTS...........................................................55
ARTICLE 6
THE TRUSTEE
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE..............................56
SECTION 6.02. NOTICE OF DEFAULTS..............................................................56
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE.......................................................56
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES..........................58
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PAGE
SECTION 6.05. MAY HOLD SECURITIES.............................................................58
SECTION 6.06. MONEY HELD IN TRUST.............................................................58
SECTION 6.07. COMPENSATION AND REIMBURSEMENT..................................................58
SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS.........................................59
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.........................................59
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...............................60
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..........................................61
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.....................63
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...............................63
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT.............................................63
SECTION 6.15. COMPLIANCE WITH TAX LAWS........................................................65
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.......................65
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS..........................66
SECTION 7.03. REPORTS BY TRUSTEE..............................................................67
SECTION 7.04. REPORTS BY COMPANY..............................................................67
ARTICLE 8
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
SECTION 8.01. WHEN COMPANY MAY MERGE, ETC.....................................................68
SECTION 8.02. OPINION OF COUNSEL..............................................................69
SECTION 8.03. SUCCESSOR CORPORATION SUBSTITUTED...............................................69
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..............................69
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.................................71
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES............................................72
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES...............................................72
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT.............................................73
SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES..............................73
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ARTICLE 10
COVENANTS
SECTION 10.01. PAYMENTS OF SECURITIES.........................................................73
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY................................................73
SECTION 10.03. CORPORATE EXISTENCE............................................................74
SECTION 10.04. PAYMENT OF TAXES AND OTHER CLAIMS..............................................74
SECTION 10.05. MAINTENANCE OF PROPERTIES......................................................74
SECTION 10.06. COMPLIANCE CERTIFICATES........................................................75
SECTION 10.07. COMMISSION REPORTS.............................................................75
SECTION 10.08. WAIVER OF STAY, EXTENSION OR USURY LAWS........................................76
SECTION 10.09. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST..............................77
SECTION 10.10. LIMITATIONS ON LIENS...........................................................78
SECTION 10.11. LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS................................79
SECTION 10.12. WAIVER OF CERTAIN COVENANTS....................................................80
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01. APPLICABILITY OF ARTICLE.......................................................80
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE..........................................80
SECTION 11.03. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED..............................80
SECTION 11.04. NOTICE OF REDEMPTION...........................................................81
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE....................................................82
SECTION 11.06. SECURITIES PAYABLE ON REDEMPTION DATE..........................................82
SECTION 11.07. SECURITIES REDEEMED IN PART....................................................82
ARTICLE 12
SINKING FUNDS
SECTION 12.01. APPLICABILITY OF ARTICLE.......................................................83
SECTION 12.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES..........................83
SECTION 12.03. REDEMPTION OF SECURITIES FOR SINKING FUND......................................83
ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT DEFEASANCE
OR COVENANT DEFEASANCE................................................................84
SECTION 13.02. DEFEASANCE AND DISCHARGE.......................................................84
SECTION 13.03. COVENANT DEFEASANCE............................................................85
SECTION 13.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE................................85
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SECTION 13.05. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST.................................................................................87
SECTION 13.06. REINSTATEMENT..................................................................88
ARTICLE 14
MISCELLANEOUS
SECTION 14.01. MISCELLANEOUS..................................................................88
v
THE INTERPUBLIC GROUP OF COMPANIES, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of ______________, 2000
TRUST INDENTURE
ACT INDENTURE
SECTION SECTION
-------------------- -------------------
ss. 310(a)(1) ..................................................6.09
(a)(2) ..................................................6.09
(a)(3) ..................................................Not Applicable
(a)(4) ..................................................Not Applicable
(b) ..................................................6.08, 6.10
ss. 311(a) ..................................................6.13
(b) ..................................................6.13
(b)(2) ..................................................7.03(a), 7.03(b)
ss. 312(a) ..................................................7.01, 7.02(a)
(b) ..................................................7.02(b)
(c) ..................................................7.02(c)
ss. 313(a) ..................................................7.03(a)
(b) ..................................................7.03(a)
(c) ..................................................7.03(a), 7.03(b)
(d) ..................................................7.03(b)
ss. 314(a) ..................................................7.04, 10.06, 10.07
(b) ..................................................Not Applicable
(c)(1) ..................................................1.02
(c)(2) ..................................................1.02
(c)(3) ..................................................Not Applicable
(d) ..................................................Not Applicable
(e) ..................................................1.02
ss. 315(a) ..................................................6.01(a)
(b) ..................................................6.02, 7.03(a)
(c) ..................................................6.01(b)
(d) ..................................................6.01(c)
(d)(1) ..................................................6.01(a), 6.01(c)
(d)(2) ..................................................6.01(c)
(d)(3) ..................................................6.01(c)
(e) ..................................................5.14
ss. 316(a)(1)(A)..................................................5.12
(a)(1)(B)..................................................5.02, 5.13
(a)(2) ..................................................Not Applicable
TRUST INDENTURE
ACT INDENTURE
SECTION SECTION
-------------------- -------------------
(b) ..................................................5.08
(c) ..................................................1.04(e)
ss. 317(a)(1) ..................................................5.03
(a)(2) ..................................................5.04
(b) ..................................................10.09
ss. 318(a) ..................................................1.07
2
INDENTURE, dated as of ________________, 2000, between THE INTERPUBLIC
GROUP OF COMPANIES, INC., a Delaware corporation (herein called the "COMPANY"),
and THE BANK OF NEW YORK, a New York banking association, as Trustee (herein
called the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and ratable benefit of the Holders of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. 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, or defined by Commission
rule and not otherwise defined herein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(4) the word "INCLUDING" (and with correlative meaning "INCLUDE") means
including, without limiting the generality of, any description preceding such
term; and
3
(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 1.04.
"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.
"ATTRIBUTABLE DEBT" when used in connection with a Sale and Lease-Back
Transaction means, at the time of determination, the lesser of (a) the fair
market value of the property involved (as determined in good faith by the
Company's Board of Directors), (b) the present value of the total net amount of
rent required to be paid under the lease during the remaining term thereof
(including any renewal term or period for which such lease has been extended)
computed by discounting from the respective due dates to such date such total
net amount of rent at the rate of interest set forth or implicit in the terms of
such lease or (c) if the obligation with respect to the Sale and Lease-Back
Transaction constitutes an obligation that is required to be classified and
accounted for as a capitalized lease for financial reporting purposes in
accordance with generally accepted accounting principles, the amount equal to
the capitalized amount of such obligation determined in accordance with
generally accepted accounting principles and included in the financial
statements of the lessee. For purposes of the foregoing definition, rent shall
not include amounts required to be paid by the lessee, whether or not designated
as rent or additional rent, on account of or contingent upon maintenance and
repairs, insurance, taxes, assessments, water rates and similar charges. In the
case of any lease that is terminable by the lessee upon the payment of a
penalty, such net amount shall be the lesser of the net amount determined
assuming termination upon the first date such lease may be terminated (in which
case the net amount shall also include the amount of the penalty, but no rent
shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated) or the net amount determined
assuming no such termination.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
4
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"BOARD OF DIRECTORS" means the board of directors of the Company;
PROVIDED, HOWEVER, that when the context refers to actions or resolutions of the
Board of Directors, then the term "BOARD OF DIRECTORS" shall also mean any duly
authorized committee of the Board of Directors of the Company authorized to act
with respect to any particular matter to exercise the power of the Board of
Directors of the Company.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities of
any series, 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 regulation to close.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations, warrants, rights, options or other equivalents
(however designated) of capital stock or any other equity interest of such
Person, including each class of common stock and preferred stock.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this 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.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by any two Officers, at least one of whom must
be its Chairman of the Board, its Chief Executive Officer, its President, its
Chief Financial Officer, its Chief Accounting Officer, its Treasurer, an
Assistant Treasurer or its Controller, and delivered to the Trustee.
5
"CONSOLIDATED NET WORTH" means, at any date of determination, (a) total
assets of the Company and its Subsidiaries (including, without limitation, all
items that are treated as intangible in accordance with GAAP) at such date less
(b) total liabilities of the Company and its Subsidiaries (including, without
limitation, all deferred taxes) at such date, in each case determined on a
consolidated basis and in accordance with GAAP for such period; PROVIDED,
HOWEVER, that the term "Consolidated Net Worth" shall not give effect to any
cumulative translation adjustments (whether positive or negative) at any such
date.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at The Bank of New
York, 000 Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, XX 00000; Attn: Corporate Trust
Trustee Administration.
"COVENANT DEFEASANCE" has the meaning specified in Section 13.03.
"CURRENCY UNIT" or "CURRENCY UNITS" shall mean any composite currency.
"CUSTODIAN" means any receiver, custodian, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 3.07.
"DEFEASANCE" has the meaning specified in Section 13.02.
"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 global
Securities, the Person designated as Depositary by the Company pursuant to
Section 3.01, which must be a clearing agency registered under the Exchange Act,
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" shall mean the Depositary with respect to the
Securities of that series.
"DOLLARS" and "$" means lawful money of the United States of America.
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
6
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations promulgated thereunder.
"GAAP" means such accounting principles as are generally accepted in
the United States of America on the date or time of any computation required
hereunder.
"HOLDER" or "SECURITYHOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDEBTEDNESS" means, with respect to any Person (without duplication
for indebtedness or other obligations of such Person), any indebtedness of such
Person for money borrowed, whether incurred, assumed or guaranteed, and
including obligations under capitalized leases.
"INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated hereunder.
"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.
"JUDGMENT CURRENCY" has the meaning specified in Section 1.15.
"LIEN" and "LIENS" have the meaning specified in Section 10.10.
"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.
"NEW YORK BANKING DAY" has the meaning specified in Section 1.15.
"NYSE" means the New York Stock Exchange, Inc.
"OFFICER" means the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Chief Accounting
7
Officer, the Treasurer, any Assistant Treasurer, the
Controller, any Assistant Controller, the Secretary or any Assistant
Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by any two Officers
of the Company, at least one of whom must be its Chairman of the Board, its
Chief Executive Officer, its President, its Chief Financial Officer, its Chief
Accounting Officer, its Treasurer or its Controller, and delivered to the
Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be reasonably acceptable
to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means 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 5.02.
"OUTSTANDING," when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such 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, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities;
PROVIDED that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.06 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; and
(iv) Securities which have been defeased pursuant to Section
13.02;
8
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (a) the principal amount of any Original Issue Discount Security
that shall be deemed to be Outstanding for such purposes shall be that portion
of the principal amount thereof that could be declared to be due and payable
upon the occurrence of an Event of Default and the continuation thereof pursuant
to the terms of such Original Issue Discount Security as of the date of such
determination, (b) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the dollar equivalent, determined
in the manner provided as contemplated by Section 3.01 on the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the dollar equivalent on the date of original
issuance of such Security of the amount determined as provided in (a) above) of
such Security, and (c) 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 or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company. The Company may act as Paying Agent with respect to any Securities
issued hereunder.
"PERMITTED LIENS" means (a) liens (including liens arising from sale
and lease-back transactions) on property or assets acquired or held by the
Company or a Restricted Subsidiary incurred to secure the payment of all or any
part of the purchase price thereof or to secure any Indebtedness incurred prior
to, at the time of, or within 180 days after the acquisition for the purpose of
financing all or any part of the purchase price thereof, or liens (including
liens arising from sale and lease-back transactions) on property or assets
existing at the time of acquisition thereof by the Company or a Restricted
Subsidiary, other than liens created in contemplation of such acquisition that
were not incurred for the purpose of financing all or any part of the purchase
price thereof, PROVIDED, HOWEVER, that the lien does not extend to or cover
9
any property or assets of any character other than the property or assets being
acquired; (b) liens on property or assets of a Person, other than the Company or
a Restricted Subsidiary, existing at the time of acquisition of such property
and assets by the Company or a Restricted Subsidiary, PROVIDED, that the liens
were not created in contemplation of such acquisition and do not extend to any
property or assets of any character other than the property or assets being
acquired; (c) liens affecting property or assets of a person, other than the
Company or any Restricted Subsidiaries, existing at the time the person merges
into or consolidates with the Company or a Restricted Subsidiary or becomes a
Restricted Subsidiary or at the time of sale, lease or other disposition of the
property or assets as an entirety or substantially as an entirety to the Company
or a Restricted subsidiary, PROVIDED, HOWEVER, that the liens were not created
in contemplation of the merger, consolidation or acquisition and do not extend
to any property or assets other than those of the person so merged into or
consolidated with, or acquired by, the Company or such Restricted Subsidiary;
(d) liens securing Indebtedness owing by a Restricted Subsidiary of the Company
to the Company or to a Restricted Subsidiary of the Company; (e) liens existing
on the date of initial issuance of the Securities of such series; (f) liens in
favor of the United States of America or any State, territory or possession
thereof (or the District of Columbia), or any department, agency,
instrumentality or political subdivision of the United States of America or any
state, territory or possession thereof (or the District of Columbia), to secure
partial, progress, advance or other payments; (g) liens on any property to
secure all or part of the cost of alteration, repair or improvement thereon or
Indebtedness incurred to provide funds for such purpose in a principal amount
not exceeding the cost of such improvements or construction; (h) purchase money
liens on personal property; (i) liens created in connection with capitalized
lease obligations, but only to the extent that such liens encumber property
financed by such capital lease obligation and the principal component of such
capitalized lease obligation is not increased; (j) liens on property arising in
connection with a securities repurchase transaction; (k) liens (including
judgment liens) arising in connection with legal proceedings, taxes, fees,
assessments or other governmental charges, so long as such proceedings, taxes,
fees, assessments or other governmental charges are being contested in good
faith and, in the case of judgment liens, execution thereon is stayed and for
which any reserves required in accordance with generally accepted accounting
principles have been established; (l) carriers', warehousemen's, mechanics',
landlords', materialmens', repairmens' or other similar liens arising in the
ordinary course of business which are not overdue for a period of more than 90
days or are being contested in good faith by appropriate proceedings diligently
pursued, PROVIDED, HOWEVER, that (i) any proceedings commenced for the
enforcement of such liens shall have been stayed or suspended within 30 days of
the commencement thereof and (ii) provision for the payment of such liens has
been made on the books of the Company to the extent required by generally
accepted accounting principles; (m) easements, rights-of-way, zoning
restrictions and
10
other similar encumbrances incurred in the ordinary course of business which, in
the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Company or any Restricted
Subsidiary; (n) pledges or deposits to secure obligations under workers'
compensation laws or other similar legislation (other than in respect of
employee benefit plans subject to the Employee Retirement Security Act of 1974,
as amended) or to secure public or statutory obligations; (o) liens securing the
performance of, or payment in respect of, bids, tenders, government contracts
(other than for the repayment of borrowed money), surety and appeal bonds and
other obligations of a similar nature incurred in the ordinary course of
business; (p) any interest or title of a lessor or sublessor and any restriction
or encumbrance to which the interest or title of such lessor or sublessor may be
subject that is incurred in the ordinary course of business; and (q) any
extension, renewal, refinancing or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any lien referred to in the
foregoing clauses (a) to (q), inclusive; PROVIDED, HOWEVER, that any lien
permitted by any of the foregoing clauses (a) through (q) shall not extend to or
cover any property of the Company or such Restricted Subsidiary, as the case may
be, other than the property specified in such clauses and improvements thereto.
"PERSON" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, 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 premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 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 of any series
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 of any
series to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
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"REGISTERED SECURITY" means any Security issued hereunder and
registered in the Security Register.
"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 3.01.
"REQUIRED CURRENCY" has the meaning specified in Section 1.15.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means any
officer of the Trustee assigned 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.
"RESTRICTED SUBSIDIARY" means any Subsidiary, including its
Subsidiaries, which meets any of the following conditions: (a) the Company's and
its other Subsidiaries' investments in and advances to the Subsidiary exceed ten
percent of the total assets of the Company and its Subsidiaries consolidated as
of the end of the most recently completed fiscal year (for a proposed business
combination to be accounted for as a pooling of interests, this condition is
also met when the number of shares of common stock exchanged or to be exchanged
by the Company exceeds ten percent of the total number of shares of its common
stock outstanding at the date the combination is initiated); or (b) the
Company's and its other Subsidiaries' proportionate share of the total assets
(after intercompany eliminations) of the Subsidiary exceeds ten percent of the
total assets of the Company and its subsidiaries consolidated as of the end of
the most recently completed fiscal year; or (c) the Company's and its other
Subsidiaries' equity in the income from continuing operations before income
taxes, extraordinary items and cumulative effect of a change in accounting
principle of the Subsidiary exceeds ten percent of such income of the Company
and its subsidiaries consolidated for the most recently completed fiscal year.
"SALE AND LEASE-BACK TRANSACTION" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of any
assets, which assets have been or are to be sold or transferred by the Company
or such Restricted Subsidiary to such Person, other than (a) any such
transaction involving a lease for a term of not more than three years, (b) any
such transaction between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries, or (c) any such transaction executed by the time of or
within one year after the latest of the acquisition, the completion of
construction or improvement or the commencement of commercial operation of such
assets.
12
"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 3.05.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"STATED MATURITY," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, joint venture, limited or unlimited liability company, trust or
estate of which (or in which) more than fifty percent of:
(a) the issued and outstanding shares of capital stock having ordinary
voting power to elect directors of such corporation (irrespective of whether at
the time shares of capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency);
(b) the interest in the capital or profits of such limited or
unlimited liability company, partnership or joint venture; or
(c) the beneficial interest in such trust or estate is at the time,
directly or indirectly, owned by such Person, by such Person and one or more of
its other Subsidiaries or by one or more of such Person's other Subsidiaries.
"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" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed;
PROVIDED, HOWEVER, that in the event that such Act is amended after such date,
"Trust Indenture Act" means,
13
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America which, in either case, are not
callable or redeemable at the option of the issuer thereof or otherwise subject
to prepayment, and shall also include a depository receipt issued by a New York
Clearing House bank or trust company as custodian with respect to any such U.S.
Government Obligation, or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt, PROVIDED that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount held by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"VICE PRESIDENT," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
14
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. 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 may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
Officer or Officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Any certificate, statement or opinion of an Officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such Officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his or her certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
15
SECTION 1.04. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. 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 6.01) 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 ownership of Registered Securities shall be proved by the
Security Register.
(d) 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.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so, PROVIDED that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the immediately following paragraph. If
16
such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; PROVIDED that no such authorization,
agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
(f) The Trustee shall set a record date, which shall not be more than
15 days prior to the date of commencement of solicitation of such action
contemplated by this section 1.04(f), for the purpose of determining the Holders
of Securities of any series entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section
5.02, (iii) any direction referred to in Section 5.12, (iv) any request to
institute proceedings referred to in Section 5.07(2), or (v) any waiver of past
defaults pursuant to Section 5.13, in each case with respect to Securities of
such series. If such a record date is fixed pursuant to this paragraph, the
relevant action may be taken or given before or after such record date, but only
the Holders of record at the close of business on such record date shall be
deemed to be holders of Securities of a series for the purpose of determining
whether Holders of the requisite proportion of Outstanding Securities of such
series have authorized or agreed or consented to such action, and for that
purpose the Outstanding Securities of such series shall be computed as of such
record date; PROVIDED that no such action by Holders on such record date shall
be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date and the proposed action by Holders to be given to the
Company in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 1.06.
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other
17
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at The Bank of New York, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx Xxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Trustee Administration, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at The Interpublic Group of Companies, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Secretary, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.06. NOTICE TO HOLDERS; WAIVER. Where this Indenture or any
Security provides for notice to Holders of any event, such notice shall be
deemed sufficiently given (unless otherwise herein or in such Security expressly
provided) if in writing and mailed, first- class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders or the validity of the proceedings to which
such notice relates.
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 request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture or any Security provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
18
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included or deemed included in this Indenture by any of the
provisions of the Trust Indenture Act, such required 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, such provision of the Trust
Indenture Act shall be deemed to apply to this Indenture as so modified or shall
be excluded, as the case may be.
SECTION 1.08. 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 1.09. 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 1.10. 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 1.11. 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 1.12. GOVERNING LAW. This Indenture and the Securities shall be
governed by and construed in accordance with the laws (other than the choice of
law provisions) of the State of New York.
SECTION 1.13. LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity of
any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities
other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section) payment of 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 or on such other
day as may be set out in the Officers' Certificate pursuant to Section 3.01 at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be, PROVIDED that no interest shall accrue on the
amount
19
so payable for the period from and after such Interest Payment Date, Redemption
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be, if payment is made on such next succeeding Business Day or other day set out
in such Officers' Certificate.
SECTION 1.14. NO RECOURSE AGAINST OTHERS. A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder, by accepting a Security, waives and releases all
such liability. Such waivers and releases are part of the consideration for the
issuance of the Securities.
SECTION 1.15. JUDGMENT CURRENCY. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of, or premium or interest, if any, on the
Securities of any series (the "REQUIRED CURRENCY") into a currency in which a
judgment will be rendered (the "JUDGMENT CURRENCY"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in the City of New York the Required Currency with the
Judgment Currency on the New York Banking Day preceding that on which a final
unappealable judgment is given and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, "NEW YORK BANKING
DAY" means any day except a Saturday, Sunday or a legal holiday in the City of
New York or a day on which banking institutions in the City of New York are
authorized or required by law or executive order to close.
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ARTICLE 2
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY. The Securities of each series shall be
in substantially the form set forth in this Article, or in such 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, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the Officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 2.02. FORM OF FACE OF SECURITY.
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT-- FOR
PURPOSES OF SECTION 1272 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT (AS DEFINED IN SECTION 1273(a)(1)
OF THE CODE AND TREASURY REGULATION SECTION 1.1273-1(a)) WITH RESPECT TO THIS
SECURITY IS ________, THE ISSUE DATE (AS DEFINED IN SECTION 1275(a)(2) OF THE
CODE AND TREASURY REGULATION SECTION 1.1273-2(a)(2)) OF THIS SECURITY IS
________, THE ISSUE PRICE (AS DEFINED IN SECTION 1273(b) OF THE CODE AND
TREASURY REGULATION 1.1273-2(a)) OF THIS SECURITY IS ________ AND THE YIELD TO
MATURITY (AS DEFINED IN TREASURY REGULATION SECTION 1.1272-1(b)) OF THIS
SECURITY IS ________ -- or insert other legend required by the Internal Revenue
Code and the regulations thereunder.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
.............................................
21
No. _______ [$]________
The Interpublic Group of Companies, Inc., a corporation duly organized
and existing under the laws of Delaware (herein called the "COMPANY," which term
includes any successor corporation 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 [if other than semi-annual
payments, insert frequency of payments and payment dates], commencing
_____________________, at [if the Security is to bear interest at a fixed rate,
insert-- the rate of _____% per annum], [if the Security is to bear interest at
a variable or floating rate and if determined with reference to an index, refer
to description of index below] 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]. 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 Securities are floating or adjustable rate securities with
respect to which the principal of or any premium or interest may be determined
with reference to an index, insert the text of the floating or adjustable rate
provision.]
[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
22
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 _______________, in dollars [IF
APPLICABLE, INSERT--; PROVIDEd, HOWEVEr, that at the option of the Company,
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register].
[If applicable, insert-- So long as all of the Securities of this
series are represented by Securities in global form, the principal of, premium,
if any, and interest, if any, on this global Security shall be paid in same day
funds to the Depositary, or to such name or entity as is requested by an
authorized representative of the Depositary. If at any time the Securities of
this series are no longer represented by global Securities and are issued in
definitive certificated form, then the principal of, premium, if any, and
interest, if any, on each certificated Security at Maturity shall be paid in
same day funds to the Holder upon surrender of such certificated Security at the
Corporate Trust Office of the Trustee, or at such other place or places as may
be designated in or pursuant to the Indenture, PROVIDED that such certificated
Security is surrendered to the Trustee, or at such other place or places as may
be designated in or pursuant to the Indenture, PROVIDED that such certificated
Security is surrendered to the Trustee, acting as Paying Agent, in time for the
Paying Agent to make such payments in such funds in accordance with its normal
procedures. Payments of interest with respect to such certificated Securities
other than at Maturity may, at the option of the Company, be made by check
mailed to the address of the Person entitled thereto as it appears on the
Security Register on the relevant Regular or Special Record Date or by wire
transfer in same day funds to such account as may have been appropriately
designated to the Paying Agent by such Person in writing not later than such
relevant Regular or Special Record Date.]
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.
23
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.
24
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
By: ______________________________
Attest:
_________________________ [SEAL]
2000
SECTION 2.03. 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 _______________, 2000 (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 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 first class
mail, [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 __________, _____], as a
whole or in part, at the election of the Company, 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,
25
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 and unpaid
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 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 first class
mail, (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 a 12-month period beginning _________________ of
the years indicated,
REDEMPTION PRICE
REDEMPTION PRICE FOR REDEMPTION
FOR REDEMPTION OTHERWISE THAN
THROUGH OPERATION THROUGH OPERATION
OF THE OF THE
SINKING FUND SINKING FUND YEAR
------------------------- ------------------------ -------------------------
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 and unpaid 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
26
record at the close of business on the relevant 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.]
[In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT--
If any 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 --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 and overdue 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 interest, if any, on the Securities of this series shall terminate.]
[This Security is subject to defeasance as described in the Indenture.]
27
The Indenture may be modified by the Company and the Trustee without
consent of any Holder with respect to certain matters as described in the
Indenture. In addition, 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 affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of a majority 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 bind such Holder and all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof 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 premium, if any) 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
premium, if any) 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, of authorized denominations and for the same Stated Maturity and
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 [$1,000] 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 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.
28
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, 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.
The Indenture imposes certain limitations on the ability of the Company
to, among other things, merge or consolidate with any other Person or sell,
assign, transfer or lease all or substantially all of its properties or assets
[IF OTHER COVENANTS ARE APPLICABLE PURSUANT TO THE PROVISIONS OF SECTION 3.01,
INSERT HERE]. All such covenants and limitations are subject to a number of
important qualifications and exceptions. The Company must report periodically to
the Trustee on compliance with the covenants in the Indenture.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under this
Security or the Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder, by accepting a Security,
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Security.
[IF APPLICABLE, INSERT-- Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures ("CUSIP"), the
Company has caused CUSIP numbers to be printed on the Securities of this series
as a convenience to the Holders of the Securities of this series. No
representation is made as to the correctness or accuracy of such numbers as
printed on the Securities of this series and reliance may be placed only on the
other identification numbers printed hereon.]
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
29
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
------------------------------------------------------
(INSERT ASSIGNEE'S SOCIAL SECURITY OR TAX I.D. NUMBER)
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
(PRINT OR TYPE ASSIGNEE'S NAME, ADDRESS AND ZIP CODE)
and irrevocably appoint ___________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Dated: __________ Your Signature: ___________________________________
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE
OF THIS SECURITY)
Signature Guaranty: ________________________________________________
[SIGNATURES MUST BE GUARANTEED BY AN "ELIGIBLE
GUARANTOR INSTITUTION" MEETING THE REQUIREMENTS OF
THE TRANSFER AGENT, WHICH REQUIREMENTS WILL INCLUDE
MEMBERSHIP OR PARTICIPATION IN STAMP OR SUCH OTHER
"SIGNATURE GUARANTEE PROGRAM" AS MAY BE DETERMINED BY
THE TRANSFER AGENT IN ADDITION TO, OR IN SUBSTITUTION
FOR, STAMP, ALL IN ACCORDANCE WITH THE EXCHANGE ACT.]
Social Security Number or
Taxpayer Identification Number: ____________________________________________
30
SECTION 2.04. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication shall be in substantially the following
form:
Dated: _______________
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
---------------------------------
As Trustee
By _________________________________
Authorized Signatory
SECTION 2.05. SECURITIES IN GLOBAL FORM. If Securities of or within a
series are issuable in whole or in part in global form, then any such Security
of such series may provide that it shall represent the aggregate or a specified
amount of the Outstanding Securities of such series from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities
of such series represented thereby may from time to time be reduced or increased
to reflect exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby shall be made in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 3.03 or Section 3.04. Subject to the provisions of Section
3.03 and, if applicable, Section 3.04, the Trustee shall deliver and redeliver
any Security in permanent global form in the manner and upon instructions given
by the Person or Persons specified therein or in the applicable Company Order.
If a Company Order pursuant to Section 3.03 or 3.04 has been, or simultaneously
is, delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 1.02 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last paragraph of Section 3.03 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby.
31
Notwithstanding the provisions of Sections 2.01 and 3.07, unless
otherwise specified as contemplated by Section 3.01, payment of principal of and
premium, if any, and interest on any Security in permanent global form shall be
made to the Person or Persons specified therein.
SECTION 2.06. FORM OF LEGEND FOR THE SECURITIES IN GLOBAL FORM. Any
Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form, or in such other form as may be
necessary or appropriate to reflect the arrangements with or to comply with the
requirements of any Depositary:
"This Security is in global form within the meaning of the
Indenture hereinafter referred to and is registered in the
name of a Depositary or a nominee of a Depositary. Unless and
until it is exchanged in whole or in part for Securities in
certificated form in the limited circumstances described in
the Indenture, this Security may not be transferred except as
a whole by the Depositary to a nominee of the Depositary or by
a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such
successor Depositary."
ARTICLE 3
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
Prior to the issuance of Securities of any series, there shall be established in
or pursuant to (i) a Board Resolution, (ii) action taken pursuant to a Board
Resolution and (subject to Section 3.03) set forth, or determined in the manner
provided, in an Officers' Certificate, or (iii) one or more indentures
supplemental hereto:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
32
(2) the purchase price, denomination and 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
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Sections 3.04, 3.05, 3.06, 9.06 or 11.07);
(3) the date or dates on which the principal of and premium, if
any, on the Securities of the series is payable or the method of
determination thereof;
(4) 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, if any, for the interest payable on any
Interest Payment Date;
(5) the place or places where the principal of, premium, if any,
and interest, if any, on Securities of the series shall be payable;
(6) the place or places where the Securities may be exchanged or
transferred;
(7) the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in
which, and the other terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company, and, if other than as provided in Section 11.03, the manner in
which the particular Securities of such series (if less than all
Securities of such series are to be redeemed) are to be selected for
redemption;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series in whole or in part pursuant to any sinking
fund or analogous provisions or upon the happening of a specified event
or at the option of a Holder thereof and the period or periods within
which, the price or prices at which, 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;
33
(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) if other than U.S. dollars, the currency or currencies
(including currency unit or units) in which payments of principal of,
premium, if any, and interest on the Securities of the series shall or
may by payable, or in which the Securities of the series shall be
denominated, and the particular provisions applicable thereto;
(11) if the payments of principal of, premium, if any, or
interest on the Securities of the series are to be made, at the
election of the Company or a Holder, in a currency or currencies
(including currency unit or units) other than that in which such
Securities are denominated or designated to be payable, the currency or
currencies (including currency unit or units) in which such payments
are to be made, the terms and conditions of such payments and the
manner in which the exchange rate with respect to such payments shall
be determined, and the particular provisions applicable thereto;
(12) if the amount of payments of principal of, premium, if any,
and interest on the Securities of the series shall be determined with
reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on a currency or currencies
(including currency unit or units) other than that in which the
Securities of the series are denominated or designated to be payable),
the index, formula or other method by which such amounts shall be
determined;
(13) 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 5.02 or the method by which such portion shall be determined;
(14) any modifications of or additions to the Events of Default
or the covenants of the Company set forth herein with respect to
Securities of the series;
(15) if either or both of Section 13.02 and Section 13.03 shall
be inapplicable to the Securities of the series (PROVIDED that if no
such inapplicability shall be specified, then both Section 13.02 and
Section 13.03 shall be applicable to the Securities of the series);
34
(16) if other than the Trustee, the identity of the Registrar and
any Paying Agent;
(17) if the Securities of the series shall be issued in whole or
in part in global form, (i) the Depositary for such global Securities,
(ii) the form of any legend in addition to or in lieu of that in
Section 2.06 which shall be borne by such global Security, (iii)
whether beneficial owners of interests in any Securities of the series
in global form may exchange such interests for certificated Securities
of such series and of like tenor of any authorized form and
denomination, and (iv) if other than as provided in Section 3.05, the
circumstances under which any such exchange may occur;
(18) if the Holders of the Securities of the series may convert
or exchange the Securities of the series into or for securities of the
Company or of other entities or other property (or the cash value
thereof), the specific terms of and period during which such conversion
or exchange may be made; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 9.01, but which may modify or delete any provision of this
Indenture insofar as it applies to such series), including any terms
which may be required by or advisable under the laws of the United
States of America or regulations thereunder or advisable (as determined
by the Company) in connection with the marketing of Securities of the
series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided (i) by a Board
Resolution, (ii) by action taken pursuant to a Board Resolution and (subject to
Section 3.03) set forth, or determined in the manner provided, in an Officers'
Certificate or (iii) 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.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
35
SECTION 3.02. 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 3.01. 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 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Chief Executive Officer, its President, its Chief Financial Officer,
or its Chief Accounting Officer 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. The seal of
the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Securities. Typographical and
other minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
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 make such Securities available for
delivery. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.01, 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 Sections 315(a)
through (d) of the Trust Indenture Act) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant
to a Board Resolution as permitted by Section 2.01, that such form has been
established in conformity with the provisions of this Indenture;
36
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.01, that such terms have
been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, except
to the extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar
laws affecting the enforcement of creditors' rights generally and by the effect
of general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
If such form 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 is not reasonably acceptable to the Trustee, or in the written opinion of
counsel to the Trustee (which counsel may be an employee of the Trustee) such
authentication may not lawfully be made or would involve the Trustee in personal
liability.
Notwithstanding the provisions of Section 3.01 and of the immediately
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 Board Resolution
and the Officers' Certificate otherwise required pursuant to Section 3.01 or the
Company Order and Opinion of Counsel otherwise required pursuant to the second
preceding paragraph at or prior to the time of authentication of each Security
of such series if such documents 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 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more global Securities, then the Company shall execute and the Trustee shall,
in accordance with this Section and the Company Order with respect to the
authentication and delivery of such series, authenticate and deliver one or more
Securities of such series in global form that (i) shall be in an aggregate
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Security or Securities in global form,
(ii) shall be registered in the name of the Depositary for such Security or
Securities in global form or its nominee, and (iii) shall be made available for
delivery by the Trustee to such Depositary or pursuant to such Depositary's
instruction.
37
Each Depositary designated pursuant to Section 3.01 for a Security in
global form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Exchange Act 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 and the Company governing the
respective duties and rights of such Depositary, the Company and the Trustee
with regard to Securities issued in global form.
Unless otherwise provided for in the form of Security, each Security
shall be dated the date of its authentication.
No Security shall be entitled to any benefits 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 or an Authenticating Agent by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
SECTION 3.04. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and make available for delivery, temporary
Securities of such series which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
In the case of Securities of any series, such temporary Securities may
be in global form, representing all or a portion of the Outstanding Securities
of such series.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions thereof), if temporary Securities
of any
38
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 shall authenticate and make available for
delivery in exchange therefor a like principal amount of definitive Securities
of the same series of authorized denominations and of like 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.
SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency to be maintained by the Company in accordance with
Section 10.02 in a Place of Payment 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") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of registration of
transfers of Securities. The Trustee is hereby appointed "SECURITY REGISTRAR"
for the purpose of registering Securities and transfers of Securities as herein
provided.
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 authenticate and 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 Stated Maturity.
At the option of the Holder, Securities of any series (except a
Security in global form) may be exchanged for other Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and Stated Maturity, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
Each Security issued in global form authenticated under this Indenture
shall be registered in the name of the Depositary designated for such series or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each
39
such Security issued in global form shall constitute a single Security for all
purposes of this Indenture.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in certificated form in the
circumstances described below, a Security in global form representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or defaults in the performance of its duties as
Depositary or it at any time the Depositary for the Securities of such series
shall no longer be eligible under Section 3.03, the Company shall appoint a
successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's selection pursuant to Section 3.01(b)(18)
shall no longer be effective with respect to the Securities of such series and
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of certificated Securities of such series of
like tenor, shall authenticate and deliver Securities of such series of like
tenor in certificated form, in authorized denominations and in an aggregate
principal amount equal to the principal amount of the Security or Securities of
such series of like tenor in global form in exchange for such Security or
Securities in global form.
The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depositary.
40
Thereupon, the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge,
(i) to each Person specified by such Depositary a new certified
Security or Securities of the same series of like tenor, of any authorized
denomination as requested by such Person in aggregate principal amount equal to
and in exchange for such Person's beneficial interest in the Security in global
form; and
(ii) to such Depositary a new Security in global form of like tenor in
a denomination equal to the difference, if any, between the principal amount of
the surrendered Security in global form and the aggregate principal amount of
certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee. Securities issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, 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
41
or exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06
or 11.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (i) to issue,
register the transfer of or exchange Securities of such 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 11.03 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.
The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by a Board Resolution or in one or more indentures supplemental
hereto.
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
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 upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new 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.
42
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 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Interest
on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
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 such series
and the date of the proposed payment (which shall be not less than 25 days after
the receipt by the Trustee of such notice, unless such Trustee shall consent to
an earlier date), and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of
43
such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of 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
(2), such manner of payment shall be deemed practicable by the Trustee.
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 3.08. 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
principal of, premium, if any, and (subject to Sections 3.05 and 3.07) 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.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interest of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depositary (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depositary and owners of
44
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the right of such Depositary (or its
nominee) as holder of such Security in global form.
SECTION 3.09. 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 and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and 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 shall
be held by the Trustee and may be destroyed (and, if so destroyed, certification
of their destruction shall be delivered to the Company, unless, by a Company
Order, the Company shall direct that canceled Securities be returned to it).
SECTION 3.10. COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 3.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a year of twelve
30-day months.
SECTION 3.11. CUSIP NUMBER. The Company in issuing Securities of any
series may use a "CUSIP" number, and if so, the Trustee may use the CUSIP number
in notices of redemption or exchange as a convenience to Holders of such series;
PROVIDED, that any such notice may state that no representation is made as to
the correctness or accuracy of the CUSIP number printed on the notice or on the
Securities of such series, and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP number of any series of
Securities.
SECTION 3.12. WIRE TRANSFERS. Notwithstanding any other provision to
the contrary in this Indenture, the Company may make any payment of moneys
required to be deposited with the Trustee on account of principal of, or
premium, if any, or interest on the Securities (whether pursuant to optional or
mandatory redemption payments, interest payments or otherwise) by wire transfer
of immediately available funds to an account designated by the Trustee on or
before the date and time such moneys are to be paid to the Holders of the
Securities in accordance with the terms hereof.
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ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities and replacement of such
Securities which may have been lost, stolen or mutilated as herein expressly
provided for or in the form of Security for such series), when the Trustee, upon
Company Request and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either (a) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06 and (ii) 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 10.09) 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 (i), (ii) or
(iii) above, has deposited with the Trustee as trust funds in trust for the
purpose an amount, in the currency or currencies or currency unit or units in
which the Securities of such series are payable, sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal, premium, if any, and interest to the
date of such deposit (in the case of Securities which have become due and
payable) or the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided
for herein relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 10.09 shall survive.
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SECTION 4.02. APPLICATION OF TRUST MONEY. Subject to the provisions of
the last paragraph of Section 10.09, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money
has been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE 5
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. "EVENT OF DEFAULT," wherever used
herein with respect to Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or to be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) the Company defaults in the payment of interest on any Security of
that series when such interest becomes due and payable and the default continues
for a period of 30 days; or
(2) the Company defaults in the payment of the principal of, or
premium, if any, on any Security of that series when the same becomes due and
payable at Maturity or on redemption or otherwise; or
(3) the Company fails to deposit any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) the Company fails to observe or perform in any material respect any
of its other covenants, agreements or warranties in the Securities of that
series or this Indenture (other than a covenant, agreement or warranty a default
in whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and the failure to
observe or perform continues for the period and after the notice specified in
the last paragraph of this Section; or
47
(5) an event of default, as defined in any mortgage, indenture, or
instrument under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company (including Securities of another
series) (other than the Securities of such series) (whether such Indebtedness
now exists or shall hereafter be created or incurred) shall occur and shall
result in Indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise become due and payable, and such default in
payment is not cured or such acceleration shall not be rescinded or annulled
within 10 days after written notice to the Company from the Trustee or to the
Company and to the Trustee from the Holders of at least twenty-five percent in
aggregate principal amount of the Outstanding Securities of that series
specifying such event of default and requiring the Company to cure such default
in payment or cause such acceleration to be rescinded or annulled and stating
that such notice is a "NOTICE OF DEFAULT" hereunder; PROVIDED, HOWEVER, that it
shall not be an Event of Default if the principal amount of Indebtedness which
is not paid at maturity or the maturity of which is accelerated is equal to or
less than $20,000,000; PROVIDED FURTHER that if, prior to a declaration of
acceleration of the maturity of the Securities of that series or the entry of
judgment in favor of the Trustee in a suit pursuant to Section 5.03, such
default shall be remedied or cured by the Company or waived by the holders of
such Indebtedness, then the Event of Default hereunder by reason thereof shall
be deemed likewise to have been thereupon remedied, cured or waived without
further action upon the part of either the Trustee or any of the Holders of the
Securities of that series, and PROVIDED FURTHER, that, subject to Sections 6.01
and 6.02, the Trustee shall not be charged with knowledge of any such default
unless written notice of such default shall have been given to the Trustee by
the Company, by a holder or an agent of a holder of any such Indebtedness, by
the trustee then acting under any indenture or other instrument under which such
default shall have occurred, or by the Holders of at least five percent in
aggregate principal amount of the Securities of that series at the time
outstanding; or
(6) the Company or any of its Restricted Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law (a) commences a voluntary case or
proceeding under any Bankruptcy Law with respect to itself, (B) consents to the
entry of a judgment, decree or order for relief against it in an involuntary
case or proceeding under any Bankruptcy Law, (C) consents to or acquiesces in
the institution of bankruptcy or insolvency proceedings against it, (D) applies
for, consents to or acquiesces in the appointment of or taking possession by a
Custodian of it or for all or substantially all of its property, (E) makes a
general assignment for the benefit of its creditors or (F) takes any corporate
action in furtherance of or to facilitate, conditionally or otherwise, any of
the foregoing; or
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(7) (i) a court of competent jurisdiction enters a judgment, decree or
order for relief in an involuntary case or proceeding under any Bankruptcy Law
which shall (a) approve as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of the Company or any of its
Restricted Subsidiaries, (B) appoint a Custodian of the Company or any of its
Restricted Subsidiaries or for all or substantially all of its property or (C)
order the winding-up or liquidation of affairs of the Company or any of its
Restricted Subsidiaries, and such judgment, decree or order shall remain
unstayed and in effect for a period of 90 consecutive days; or (ii) any
bankruptcy or insolvency petition or application is filed, or any bankruptcy or
insolvency proceeding is commenced, against the Company or any of its Restricted
Subsidiaries and such petition, application or proceeding is not dismissed
within 60 days; or (iii) a warrant of attachment is issued against any material
portion of the property of the Company or any of its Restricted Subsidiaries
which is not released within 60 days of service; or
(8) any other Event of Default provided with respect to Securities of
that series.
A Default under clause (4) above is not an Event of Default until the
Trustee or the Holders of at least twenty-five percent in aggregate principal
amount of the Outstanding Securities of that series notify the Company of the
Default and the Company does not cure the Default within 60 days after receipt
of the notice. The notice must specify the Default, demand that it be remedied
and state that the notice is a "NOTICE OF DEFAULT." When a Default under clause
(4) above is cured within such 60-day period, it ceases to be a Default.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default with respect to Securities of any series (other than an Event
of Default specified in clause (6) or (7) of Section 5.01) occurs and is
continuing, the Trustee by notice in writing to the Company, or the Holders of
at least twenty-five percent in aggregate principal amount of the Outstanding
Securities of that series by notice in writing to the Company and the Trustee,
may declare the unpaid principal of and accrued interest to the date of
acceleration (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) on all the Outstanding Securities of that series to be due
and payable immediately and, upon any such declaration, the Outstanding
Securities of that series (or specified principal amount) shall become and be
immediately due and payable.
If an Event of Default specified in clause (6) or (7) of Section 5.01
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or
49
specified principal amount) shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of any Security of that series.
Upon payment of all such principal and interest, all of the Company's
obligations under the Securities of that series and (upon payment of the
Securities of all series) this Indenture shall terminate, except obligations
under Section 6.07.
At any time after a declaration of acceleration of Maturity 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 notice to the Trustee may
rescind an acceleration and its consequences if (i) all existing Events of
Default, other than the nonpayment of the principal of and interest on the
Securities of that series that has become due solely by such declaration of
acceleration, have been cured or waived, (ii) to the extent the payment of such
interest is lawful, interest on overdue installments of interest and overdue
principal that has become due otherwise than by such declaration of acceleration
have been paid, (iii) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction and (iv) all payments due to the
Trustee and any predecessor Trustee under Section 6.07 have been made.
SECTION 5.03. 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 of
any series 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 of any series at the Maturity thereof, or
(3) default is made in the payment of any sinking or analogous
obligation when the same becomes due by the terms of the Securities of any
series, and any such default continues for any period of grace provided with
respect to the Securities of such series,
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 premium, if
50
any) and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and premium, if any) and
on any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to secure any other proper remedy.
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel) and of the Holders allowed in such judicial proceedings, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial
51
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.06. APPLICATION OF MONEY COLLECTED. Any money collected by
the Trustee pursuant to this Article in respect of the Securities of any series
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,
premium, if any, or interest, upon presentation of the Securities in respect of
which moneys have been collected and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.07
applicable to such series;
SECOND: To the payment of the amounts then due and unpaid for principal
of, and premium, if any, and interest on the Securities of such series 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 of such series for principal, and premium, if
any, and interest, respectively; and
THIRD: To the Company.
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The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.06. At least ten (10) days before such record
date, the Trustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and the amount to be paid.
SECTION 5.07. 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 at least twenty-five percent 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 shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of Holders of Securities of
any series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Securities of the affected series.
SECTION 5.08. 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, premium, if any, and
(subject to Section 3.07)
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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 5.09. 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 has been
instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.06, 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 5.11. 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
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 5.12. 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;
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(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(3) subject to Section 6.01, the Trustee need not take any action
which might involve the Trustee in personal liability or be unduly prejudicial
to the Holders not joining therein.
SECTION 5.13. 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 Default or Event of Default with respect to such series
and its consequences, except a Default or Event of Default
(1) in respect of the payment of the principal of or premium, if any,
or interest on any Security of such series, or
(2) in respect of a covenant or other 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 or Event of Default shall cease to
exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than ten percent in principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or premium, if any, or interest on any Security on
or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
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ARTICLE 6
THE TRUSTEE
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE. (a)
Except during the continuance of an Event of Default, the Trustee's duties and
responsibilities under this Indenture shall be governed by Section 315(a) of the
Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing, and is
known to the Trustee, the Trustee shall exercise the rights and powers vested in
it by this Indenture, and shall use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) None of the provisions of Section 315(d) of the Trust Indenture
Act shall be excluded from this Indenture.
(d) Every provision of this Indenture which pertains to the Trustee
shall be subject to this Section 6.01.
SECTION 6.02. NOTICE OF DEFAULTS. Within 90 days after the occurrence
of any Default or Event of Default with respect to the Securities of any series,
the Trustee shall give to all Holders of Securities of such series, as their
names and addresses appear in the Security Register, notice of such Default or
Event of Default known to the Trustee, unless such Default or Event of Default
shall have been cured or waived; PROVIDED, HOWEVER, that, except in the case of
a Default or Event of Default in the payment of the principal of or premium, if
any, or interest on any Security of such series, the Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Securities of such series.
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of
the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
56
(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;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default which may have occurred, 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, approval or other paper or document, or the books and records of the
Company, unless requested in writing to do so by the Holders of a majority in
principal amount of the Outstanding Securities of any series; PROVIDED, HOWEVER,
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is not, in the opinion of the Trustee, reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding; the reasonable expense of every
such investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand;
(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
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(h) the Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals 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, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder, and that the
statements made by it or to be made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true and accurate. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 6.05. MAY HOLD SECURITIES. The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar 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 6.08 and 6.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.06. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder (including amounts held by the Trustee as Paying Agent) 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 upon in writing with the Company.
SECTION 6.07. COMPENSATION AND REIMBURSEMENT. The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation as
negotiated between the Company and the Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the
58
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability, damage, claim or expense, including taxes (other than taxes
based upon or determined or measured by the income of the Trustee), incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.01(6) or Section 5.01(7), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.
The provisions of this Section 6.07 shall survive this Indenture and
the resignation or removal of the Trustee.
SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS. The Trustee
shall be disqualified only where such disqualification is required by Section
310(b) of the Trust Indenture Act. Nothing shall prevent the Trustee from filing
with the Commission the application referred to in the second to last paragraph
of Section 310(b) of the Trust Indenture Act.
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at
all times be a Trustee hereunder which shall be eligible to act as Trustee under
Section 310(a)(1) of the Trust Indenture Act having a combined capital and
surplus of at least $100,000,000 and subject to supervision or examination by
federal or State authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any Person directly or indirectly controlling,
controlled by, or under common control with the Company may serve as Trustee. 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.
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SECTION 6.10. 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 6.11.
(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 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(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.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act 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 6.09 and
shall fail to resign after written request therefor by the Company or
by any such Holder of a Security who has been a bona fide Holder of a
Security for at least six months; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to
Section 315(e) of the Trust Indenture Act, 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.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company with
respect to such Securities. 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 6.11, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(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 by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (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,
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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 such (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
such 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
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.
(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) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.
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SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, PROVIDED such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor (by merger,
conversion, consolidation or otherwise as permitted hereunder) to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT. At any time when any
of the Securities remain Outstanding the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of, and subject to the direction of, the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.06, 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 $100,000,000 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
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in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, PROVIDED such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall 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 as negotiated between the Company and such
Authenticating Agent for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Form of Authenticating Agent's
Certificate of Authentication
Dated: ____________________
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
_______________________________________
As Trustee
By _______________________________________
As Authenticating Agent
By _______________________________________
Authorized Signatory
SECTION 6.15. COMPLIANCE WITH TAX LAWS. The Trustee hereby agrees to
comply with all U.S. Federal income tax information reporting and withholding
requirements applicable to it with respect to payments of premium (if any) and
interest on the Securities of any series, whether acting as Trustee, Security
Registrar, Paying Agent or otherwise with respect to the Securities of any
series.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. 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 15 days after the Regular Record
Date for each series of Securities, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities as
of such Regular Record Date (unless the Trustee has such information), or if
there is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
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SECTION 7.02. 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 7.01 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 7.01 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "APPLICANTS")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 7.02(a); or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 7.02(a), and as
to the approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information preserved
at the time by the Trustee in accordance with Section 7.02(a) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interest of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all objections so sustained have
been met and shall enter an order so declaring, the Trustee
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shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(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 the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 7.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 7.02(b).
SECTION 7.03. REPORTS BY TRUSTEE. (a) Within 60 days after May 15 of
each year commencing with the year 2000, the Trustee shall transmit by mail to
all Holders of Securities as provided in Section 313(c) of the Trust Indenture
Act, a brief report dated as of May 15, if required by and in compliance with
Section 313(a) of the Trust Indenture Act. The Trustee shall also comply with
Section 313(b) of the Trust Indenture Act.
(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
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 7.04. REPORTS BY COMPANY. The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
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(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, (a) concurrently with furnishing the same to
its stockholders, the Company's annual report to stockholders, containing
certified financial statements, and any other financial reports which the
Company generally furnishes to its stockholders, and (b) within 30 days after
the filing thereof with the Trustee, such summaries of any other information,
documents and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission; and
(4) furnish to the Trustee, on ___________ of each year, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For purposes
of this paragraph, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture. Such
certificate need not comply with Section 1.02.
ARTICLE 8
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
SECTION 8.01. WHEN COMPANY MAY MERGE, ETC.. The Company shall not
consolidate with, or merge with or into, any other Person (whether or not the
Company shall be the surviving corporation), or convey, transfer or lease all or
substantially all of its properties and assets as an entirety or substantially
as an entirety to any Person or group of affiliated Persons, in one transaction
or a series of related transactions, unless:
(1) either the Company shall be the continuing Person or the Person
(if other than the Company) formed by such consolidation or with which or into
which the Company is merged or the Person (or group of affiliated Persons) to
which all or substantially all the properties and assets of the Company as an
entirety or substantially as an entirety are conveyed, transferred or leased
shall be a corporation (or constitute corporations) organized and existing under
the laws of the United States of America or any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form
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satisfactory to the Trustee, all the obligations of the Company under the
Securities and this Indenture; and
(2) immediately after giving effect to such transaction or series of
related transactions, no Event of Default, and no Default, shall have occurred
and be continuing.
SECTION 8.02. OPINION OF COUNSEL. The Company shall deliver to the
Trustee prior to the proposed transaction(s) covered by Section 8.01 an
Officers' Certificate and an Opinion of Counsel stating that the transaction(s)
and such supplemental indenture comply with this Indenture and that all
conditions precedent to the consummation of the transaction(s) under this
Indenture have been met.
SECTION 8.03. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation
by the Company with or merger by the Company into any other corporation or any
conveyance, transfer or lease all or substantially all of the property and
assets of the Company in accordance with Section 801, the successor corporation
formed by such consolidation or into which the Company is merged or the
successor corporation or affiliated group of corporations to which such lease,
sale, assignment or transfer 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 corporation or corporations had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor corporation or corporations shall be relieved of all obligations and
covenants under this Indenture and the Securities and in the event of such
conveyance or transfer, except in the case of a lease, any such predecessor
corporation may be dissolved and liquidated.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without notice to or the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
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(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 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
(5) to change or eliminate any of the provisions of this Indenture,
PROVIDED that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; 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
6.11(b); or
(9) to cure any ambiguity, defect or inconsistency or to correct or
supplement any provision herein which may be inconsistent with any other
provision herein; or
(10) to make any change that does not materially adversely affect the
interests of the Holders of Securities of any series; or
(11) to add guarantees with respect to any or all of the Securities;
or
(12) to provide for uncertificated Securities in addition to or in
place of certificated Securities (PROVIDED that the uncertificated Securities
are issued in registered form for purposes of Section 163(f) of the Internal
Revenue Code or in a
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manner such that the uncertificated Securities are described in Section
163(f)(2)(B) of such Code).
Upon request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in (and subject to the last sentence
of) Section 9.03, the Trustee shall join with the Company in the execution of
any supplemental indenture authorized or permitted by the terms of this
Indenture.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
written consent of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture (with the Securities of each series voting as a class), by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee shall, subject to Section 9.03, 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 premium, if
any, or any installment of principal of or premium, if any, or interest on, any
Security, or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption, repurchase or repayment thereof, or
change the manner in which the amount of any principal thereof or premium, if
any, or interest thereon is determined, or reduce the amount of the principal of
any Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or
change any Place of Payment where, or the coin or currency or currency unit 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);
(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 Defaults or
Events of Default hereunder and their consequences provided for in this
Indenture; or
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(3) change the redemption provisions (including Article 11) hereof in
a manner adverse to such Holder; or
(4) modify any of the provisions of this Section, Section 5.13 or
Section 10.12, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby; 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 and Section 10.12, or the deletion of this
proviso, in accordance with the requirements of Sections 6.11(b) and 9.01(8).
A supplemental indenture which changes or eliminates any covenant or
other provisions of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES. The Trustee shall
sign any supplemental indenture authorized pursuant to this Article, subject to
the last sentence of this Section 9.03. 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 6.01) shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. 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.
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SECTION 9.05. 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 9.06. 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 10
COVENANTS
SECTION 10.01. PAYMENTS OF SECURITIES. With respect to each series of
Securities, the Company will duly and punctually pay the principal of (and
premium, if any) and interest on such Securities in accordance with their terms
and this Indenture, and will duly comply with all the other terms, agreements
and conditions contained in, or made in the Indenture for the benefit of, the
Securities of such series.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain an office or agency in each Place of Payment where Securities may be
surrendered for registration of transfer or exchange or for presentation for
payment, where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in location, of
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee as set forth in Section 1.05 hereof.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. 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.
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SECTION 10.03. CORPORATE EXISTENCE. Subject to Article 8 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 that of each of its
Subsidiaries and the rights (charter and statutory), licenses and franchises of
the Company and its Subsidiaries; PROVIDED, HOWEVER, that (a) the Company shall
not be required to preserve any such right, license or franchise or the
corporate existence of any of its Subsidiaries if the Board of Directors, or the
board of directors of the Subsidiary concerned, as the case may be, shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company or any of its Subsidiaries, and (b) nothing herein
contained shall prevent any Subsidiary of the Company from liquidating or
dissolving, or merging into, or consolidating with the Company (PROVIDED that
the Company shall be the continuing or surviving corporation) or with any one or
more other Subsidiaries if the Board of Directors or the board of directors of
the Subsidiary concerned, as the case may be, shall so determine.
SECTION 10.04. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay
or discharge, or cause to be paid or discharged, before the same shall become
delinquent, (1) all material taxes, assessments and governmental charges levied
or imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a material lien
upon the property of the Company or any Subsidiary; PROVIDED, HOWEVER, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings and for
which adequate provision has been made.
SECTION 10.05. MAINTENANCE OF PROPERTIES. The Company will cause all
material properties used or useful in the conduct of its business or the
business of any of its Subsidiaries to be maintained and kept in good condition,
repair and working order (normal wear and tear excepted) and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Board of Directors or of the board of directors of the Subsidiary
concerned, as the case may be, desirable in the conduct of the business of the
Company or any Subsidiary of the Company.
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SECTION 10.06. COMPLIANCE CERTIFICATES. (a) The Company shall deliver
to the Trustee within 90 days after the end of each fiscal year of the Company
(which fiscal year currently ends on December 31), an Officers' Certificate
stating whether or not the signer knows of any Default or Event of Default by
the Company that occurred prior to the end of the fiscal year and is then
continuing. If the signer does know of such a Default or Event of Default, the
certificate shall describe each such Default or Event of Default and its status
and the specific section or sections of this Indenture in connection with which
such Default or Event of Default has occurred. The Company shall also promptly
notify the Trustee in writing should the Company's fiscal year be changed so
that the end thereof is on any date other than the date on which the Company's
fiscal year currently ends. The certificate need not comply with Section 1.02
hereof, but shall comply with Section 314(a)(4) of the Trust Indenture Act.
(b) The Company shall deliver to the Trustee, within 10 days after the
occurrence thereof, notice of any acceleration which with the giving of notice
and the lapse of time would be an Event of Default within the meaning of Section
5.01(5) hereof.
(c) The Company shall deliver to the Trustee within 100 days after the
end of each fiscal year a written statement by the Company's independent
certified public accountants stating (i) that their audit examination has
included a review of the terms of this Indenture and the Securities as they
relate to accounting matters and (ii) whether, in connection with their audit
examination, any Default has come to their attention and if such a Default has
come to their attention, specifying the nature and period of existence thereof
and the specific section or sections of this Indenture in connection with which
such Default has occurred; PROVIDED that, without any restriction as to the
scope of the audit examination, such independent certified public accountants
shall not be liable by reason of the failure to obtain knowledge of such Default
that would not be disclosed in the course of an audit examination conducted in
accordance with generally accepted auditing standards.
(d) The Company shall deliver to the Trustee forthwith upon becoming
aware of a Default or Event of Default (but in no event later than 10 days after
the occurrence of each Default or Event of Default that is continuing), an
Officers' Certificate setting forth the details of such Default or Event of
Default and the action that the Company proposes to take with respect thereto
and the specific section or sections of this Indenture in connection with which
such Default or Event of Default has occurred.
SECTION 10.07. COMMISSION REPORTS. (a) The Company shall file with or
otherwise make available to the Trustee, within 30 days after it files them with
the Commission, copies of the quarterly and annual reports and of the
information,
75
documents, and other reports (or copies of such portions of any of the foregoing
as the Commission may by rules and regulations prescribe) which the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act. If the Company is not subject to the requirement of such Section
13 or 15(d) of the Exchange Act, the Company shall file with the Trustee, within
30 days after it would have been required to file such information with the
Commission, financial statements, including any notes thereto and, with respect
to annual reports, an auditors' report by an accounting firm of established
national reputation and a "Management's Discussion and Analysis of Financial
Condition and Results of Operations," both comparable to that which the Company
would have been required to include in such annual reports, information,
documents or other reports if the Company had been subject to the requirements
of such Sections 13 or 15(d) of the Exchange Act. The Company also shall comply
with the other provisions of Section 314(a) of the Trust Indenture Act.
(b) So long as the Securities remain outstanding, the Company shall
cause its annual report to stockholders and any other financial reports
furnished by it to stockholders generally, to be mailed to the Holders at their
addresses appearing in the register of Securities maintained by the Security
Registrar in each case at the time of such mailing or furnishing to
stockholders. If the Company is not required to furnish annual or quarterly
reports to its stockholders pursuant to the Exchange Act, the Company shall
cause its financial statements, including any notes thereto and, with respect to
annual reports, an auditors' report by an accounting firm of established
national reputation and a "Management's Discussion and Analysis of Financial
Condition and Results of Operations," to be so filed with the Trustee and mailed
to the Holders within 90 days after the end of each of the Company's fiscal
years and within 45 days after the end of each of the first three quarters of
each fiscal year.
(c) The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information that the Company may
be required to deliver to the Holders under this Section 10.07.
SECTION 10.08. WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim, and will actively
resist any and all efforts to be compelled to take the benefit or advantage of,
any stay or extension law or any usury law or other law, which would prohibit or
forgive the Company from paying all or any portion of the principal of and/or
interest on the Securities as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein
76
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 10.09. 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 prior to 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 to so act.
The Company will cause each Paying Agent for any series of Securities
(other than the Trustee) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(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
77
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 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 one
year after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee of such
Paying Agent, before being required to make any such repayment, may 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 New York, New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 10.10. LIMITATIONS ON LIENS. Unless the terms of a particular
series of Securities otherwise provide, so long as any Securities of such series
remain Outstanding, the Company will not, nor will it permit any Restricted
Subsidiary to, issue, incur, create, assume or guarantee any Indebtedness
secured by a mortgage, security interest, pledge, lien, charge or other
encumbrance (mortgages, security interests, pledges, liens, charges and other
encumbrances being hereinafter in this Article 10 referred to as "LIEN" or
"LIENS") upon any assets of the Company or any Restricted Subsidiary (whether
such assets are now existing or owned or hereafter created or acquired) without
in any such case effectively providing concurrently with the issuance,
incurrence, creation, assumption or guaranty of any such Indebtedness that the
Securities of such series (together with, if the Company shall so determine, any
other indebtedness of or guarantee by the Company or such Restricted Subsidiary
ranking equally with the Securities of such series and then existing or
thereafter created) shall be secured equally and ratably with (or, at the
Company's option, prior to) such secured Indebtedness until such time as such
Indebtedness is no longer secured by a lien. The preceding sentence shall not
require the Company to secure any Securities of such series if the lien consists
of either of the following:
(a) Permitted Liens; or
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(b) liens securing Indebtedness if, after giving pro forma effect to
the incurrence, creation, assumption or guaranty of such Indebtedness (and the
receipt and application of the proceeds thereof) or the securing of outstanding
Indebtedness, the sum of (without duplication) (i) the aggregate principal
amount of all such Indebtedness of the Company and its Subsidiaries secured by
liens (other than Permitted Liens) upon the assets of the Company or any
Restricted Subsidiary or, if less, the fair market value of the property subject
to such lien, as determined in good faith by the Board of Directors and (ii) all
Attributable Debt in respect of Sale and Lease-Back Transactions not otherwise
permitted under the first sentence of Section 10.11, at the time of
determination does not exceed fifteen percent of Consolidated Net Worth.
SECTION 10.11. LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS. Unless
the terms of a particular series of Securities otherwise provide, so long as any
Securities of such series remain Outstanding, the Company will not, nor will it
permit any Restricted Subsidiary to, enter into any Sale and Lease-Back
Transaction for a term of more than three years unless (a) the assets subject to
the Sale and Lease-back Transaction have not been owned by the Company or a
Restricted Subsidiary or have not been in full operation for more than one year
prior to the Sale and Lease-back Transaction or (b) the Company or such
Restricted Subsidiary would be entitled to incur Indebtedness secured by a lien
on such assets in an amount at least equal to the Attributable Debt with respect
to such Sale and Lease-Back Transaction without equally and ratably securing the
Securities of such series pursuant to Section 10.10 or (c) the Company, within
180 days after the effective date of such Sale and Lease-Back Transaction,
applies an amount equal to the value of such assets to the defeasance or
retirement (other than any mandatory retirement, mandatory prepayment or sinking
fund payment or by way of payment at maturity) of Securities or other
Indebtedness of the Company or a Restricted Subsidiary that matures more than
one year after the creation of such Indebtedness or to the purchase,
construction or development of other comparable property or (d) the transaction
is between the Company and one of its Restricted Subsidiaries. Notwithstanding
the foregoing, the Company and its Restricted Subsidiaries shall be allowed to
enter into Sale and Lease-back Transactions if, after giving pro forma effect to
such Sale and Lease-back Transaction (and the receipt and application of
proceeds thereof) the sum of (without duplication) (i) the aggregate principal
amount of all Indebtedness of the Company and its Subsidiaries secured by liens
(other than Permitted Liens) upon the assets of the Company or any Restricted
Subsidiary or, if less, the fair market value of the property subject to such
lien, as determined in good faith by the Board of Directors and (ii) all
Attributable Debt in respect of Sale and Lease-Back Transactions not otherwise
permitted under the first sentence of this Section 10.11, at the time of
determination does not exceed fifteen percent of Consolidated Net Worth.
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SECTION 10.12. WAIVER OF CERTAIN COVENANTS. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 10.10 or 10.11 with respect to the Securities of any series if before
the time for such compliance the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series shall, by Act or
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01. APPLICABILITY OF ARTICLE. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
3.01 for Securities of any series) in accordance with this Article.
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of
the Company to redeem any Securities shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 30 and not more than 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 11.03. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If
less than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not less than 90 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, substantially pro rata, by lot or by any
other method as the Trustee considers fair and appropriate and that complies
with the requirements of the principal national securities exchange, if any, on
which such Securities are listed, and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the
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principal amount of Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series; PROVIDED that in
case the Securities of such series have different terms and maturities, the
Securities to be redeemed shall be selected by the Company and the Company shall
give notice thereof to the Trustee.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of the 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 11.04. NOTICE OF REDEMPTION. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 45 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security 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) the CUSIP number, if any, of the Securities to be redeemed.
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Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.09) an amount of money 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 which are to be redeemed
on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
SECTION 11.06. 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 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 Regular or Special Record Dates according
to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.07. SECURITIES REDEEMED IN PART. Any Security which is to be
redeemed only in part shall be surrendered at an office or agency of the Company
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 authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of
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the same series and Stated Maturity, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE 12
SINKING FUNDS
SECTION 12.01. APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "MANDATORY SINKING
FUND PAYMENT," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "OPTIONAL
SINKING FUND PAYMENT." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 12.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Securities of a series (other than any Securities
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 been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 12.03. 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
83
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 12.02 and will also deliver to the Trustee
any Securities to be so delivered (which have not been previously 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 11.03 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.06 and 11.07.
ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. Unless pursuant to Section 3.01 provision is
made for the inapplicability of either or both of (a) defeasance of the
Securities of a series under Section 13.02 or (b) covenant defeasance of the
Securities of a series under Section 13.03, then the provisions of such Section
or Sections, as the case may be, together with the other provisions of this
Article, 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 13.02 (unless
inapplicable) or Section 13.03 (unless inapplicable) be applied to the
Outstanding Securities of such series upon compliance with the applicable
conditions set forth below in this Article.
SECTION 13.02. DEFEASANCE AND DISCHARGE. Upon the Company's exercise of
the option provided in Section 13.01 to defease the Outstanding Securities of a
particular series, the Company shall be discharged from its obligations with
respect to the Outstanding Securities of such series on the date the applicable
conditions set forth in Section 13.04 are satisfied (hereinafter, "DEFEASANCE").
Defeasance shall mean that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series 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); PROVIDED, HOWEVER, that the following rights,
obligations, powers, trusts, duties and immunities 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 provided for in
Section 13.04, payments in respect of the principal of (and premium, if any) and
interest on such Securities when
84
such payments are due, (B) the Company's obligations with respect to such
Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.09, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article, the Company may exercise its
option with respect to defeasance under this Section 13.02 notwithstanding the
prior exercise of its option with respect to covenant defeasance under Section
13.03 in regard to the Securities of such series.
SECTION 13.03. COVENANT DEFEASANCE. Upon the Company's exercise of the
option provided in Section 13.01 to obtain a covenant defeasance with respect to
the Outstanding Securities of a particular series, the Company shall be released
from its obligations under this Indenture (except its obligations under Sections
3.04, 3.05, 3.06, 5.06, 5.09, 6.10, 10.01, 10.02, 10.06, 10.08 and 10.09) with
respect to the Outstanding Securities of such series on and after the date the
applicable conditions set forth in Section 13.04 are satisfied (hereinafter,
"COVENANT DEFEASANCE"). Covenant defeasance shall mean 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 this Indenture (except its obligations under Sections 3.04, 3.05, 3.06,
5.06, 5.09, 6.10, 10.01, 10.02, 10.06, 10.08 and 10.09), whether directly or
indirectly by reason of any reference elsewhere herein or by reason of any
reference to any other provision herein or in any other document, and such
omission to comply shall not constitute an Event of Default under Section
5.01(4) with respect to Outstanding Securities of such series, and the remainder
of this Indenture and of the Securities of such series shall be unaffected
thereby.
SECTION 13.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to defeasance under Section 13.02 and covenant
defeasance under Section 13.03 with respect to the Outstanding Securities of a
particular series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.09 who shall agree to comply with the provisions of this Article
applicable to it), under the terms of an irrevocable trust agreement in form and
substance reasonably satisfactory to such Trustee, as trust funds in trust for
the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, 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 the due date of any payment, money
in an amount, or (C) a combination thereof, in each case sufficient, after
payment of all federal, state and local taxes or other charges or assessments in
respect thereof payable by the Trustee, in the opinion of a nationally
85
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, on) and each installment
of principal of (and premium, if any) and interest on the Outstanding Securities
of such series on the Stated Maturity of such principal or installment of
principal or interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series on the day on
which such payments are due and payable in accordance with the terms of this
Indenture and of such Securities.
(2) No Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such deposit or
shall occur as a result of such deposit, and no Default or Event of Default
under clause (6) or (7) of Section 5.01 hereof shall occur and be continuing, at
any time during the period ending on the 91st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3) Such deposit, defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(4) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any national securities exchange
registered under the Exchange Act to be delisted.
(5) In the case of an election with respect to Section 13.02, the
Company shall have delivered to the Trustee either (a) a ruling directed to the
Trustee received from the Internal Revenue Service 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 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 or (B) an Opinion of Counsel, based on such ruling or on a change in
the applicable federal income tax law since the date of this Indenture, 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 with respect to Section 13.03, the
Company shall have delivered to the Trustee an Opinion of Counsel or a ruling
directed to the
86
Trustee received from the Internal Revenue Service 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 3.01.
(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 13.02 or
the covenant defeasance under Section 13.03 (as the case may be) have been
complied with.
SECTION 13.05. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST. Subject to the provisions of the last paragraph of Section 10.09, all
money and Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee--collectively for purposes of this
Section 13.05, the "TRUSTEE") pursuant to Section 13.04 in respect of the
Outstanding Securities of a particular 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
(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.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 13.04 or the principal and interest received in respect
thereof, other than any such tax, fee or other charge which by law is for the
account of the Holders of the Outstanding Securities of such series.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations held by it as provided in Section 13.04 with
respect to Securities of any series 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 for the purpose for which
such money or Government Obligations were deposited.
87
SECTION 13.06. REINSTATEMENT. If the Trustee or the Paying Agent is
unable to apply any money or U.S. Government Obligations, as the case may be, in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money or U.S. Government Obligations, as the case may be, held in trust
pursuant to Section 13.05 with respect to such Securities in accordance with
this Article; PROVIDED, HOWEVER, that if the Company makes any payment of
principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights
(if any) of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations, as the case may be, so held in trust.
ARTICLE 14
MISCELLANEOUS
SECTION 14.01. MISCELLANEOUS. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
By: ______________________________
Name: ______________________________
Title: ______________________________
[SEAL]
Attest:
------------------------------
Name: ______________________________
Title: ______________________________
THE BANK OF NEW YORK
as Trustee
By: ______________________________
Name: ______________________________
Title: ______________________________
[SEAL]
Attest:
------------------------------
Name: ______________________________
89
Title: ______________________________
90
STATE OF [ ] )
) SS.:
COUNTY OF __________ )
On the _____ day of _______________, 2000, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he or she is _________________________ of The Interpublic Group of
Companies, Inc., one of the parties described in and which executed the
foregoing instrument; that he or she knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
or she signed his or her name thereto by like authority.
------------------------------
My commission expires:
91
STATE OF [ ] )
) SS.:
COUNTY OF [ ] )
On the _____ day of _______________, 2000, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he or she is ____________________ of The Bank of New York, one of
the parties described in and which executed the foregoing instrument; that he or
she knows the seal of said bank; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said bank, and that he or she signed his or her name thereto by
like authority. ____________________________ My commission expires:
92
CROSS-REFERENCE TARGET LIST
NOTE: DUE TO THE NUMBER OF TARGETS SOME TARGET NAMES MAY NOT APPEAR IN THE TARGET PULL-DOWN LIST.
(This list is for the use of the wordprocessor only, is not a part of this document and may be discarded.)
ARTICLE/SECTION TARGET NAME
1.02...............................................comp.certs.ops
1.04..............................................acts.of.holders
1.04(e)..........................................xxxxxx.xxxx.xxxx
1.05...........................................xxxxxxx.xxxxxxx.xx
1.06............................................notice.hldrs.waiv
1.07............................................conflict.trst.ind
1.15................................................jdgmnt.crrncy
2.01..............................................forms.generally
2.06..................................................form.legend
3.01.................................................amnt.unlmted
3.03....................................................exec.auth
3.04..............................................temp.securities
3.05............................................reg.trnsfr.exchng
3.06................................................mut.dest.lost
3.07..............................................pymnt.int.rghts
3.09.................................................cancellation
5.01...............................................events.default
5.02.............................................accel.mat.reciss
5.03..........................................coll.indebt.by.trst
5.04.........................................trst.file.prfs.claim
5.06....................................................xxx.xxxxx
5.08............................................uncond.rght.hldrs
5.09...............................................restore.rights
5.12..................................................cntrl.hldrs
5.13.........................................waiver.past.defaults
5.14...............................................undrtkng.costs
6.01...............................................duties.trustee
6.01(a)...........................................xxxx.xxxxxx.xxx
6.01(b).......................................dflt.trst.rghts.ind
6.01(c)..........................................no.315(d).exclud
6.02.............................................trst.not.default
6.07...........................................comp.reimbursement
6.08.............................................disqual.conflict
6.09...............................................corp.trust.req
6.10................................................resig.removal
6.11........................................appointment.successor
6.11(b)...........................................app.suc.trustee
6.13.................................................pref.collect
6.14...............................................app.auth.agent
7.01............................................xx.xxxx.xxxx.xxxx
7.02(a).............................................xxxxxxxx.xxxx
7.02(b)................................................applicants
7.02(c)...........................................not.accountable
7.03(a)............................................trust.mail.rpt
7.03(b)............................................trust.rpt.copy
7.04.....................................................xxxxx.xx
8...................................................consol.merger
9.01...............................................supp.indenture
9.03...........................................exe.supp.indenture
9.06.............................................ref.sec.supp.ind
10..................................................art.covenants
10.01.........................................payments.securities
10.02...........................................xxxxxxxxxx.xxxxxx
10.06............................................compliance.certs
10.07............................................commission.rprts
10.08...........................................waiver.usury.laws
10.09.............................................money.secs.trst
10.10.................................................limit.liens
10.11............................................xxxxxxxxxxx.xxxx
10.12............................................waiver.covenants
11.................................................art.redemp.sec
11.03...........................................selection.trustee
11.04...........................................notice.redemption
11.06..........................................securities.payable
11.07..............................................secs.rdmd.part
12.02..........................................xxxxx.xxxxxxx.xxxx
13.01.......................................applicability.article
13.02...............................................defeas.dschrg
13.03...............................................covnnt.defeas
13.04.......................................conditions.defeasance
13.05.............................................xxxxxxxxx.xxxxx
