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STAPLES, INC.,
AS ISSUER,
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and
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
AS SUBSIDIARY GUARANTORS,
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to
HSBC BANK USA,
AS TRUSTEE
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Indenture
Dated as of September 30, 2002
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7.375% Senior Notes due 2012
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TABLE OF CONTENTS
PAGE
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Parties..................................................................................................1
Recitals of the Company and the Subsidiary Guarantors....................................................1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions................................................................................1
Act.............................................................................................2
Additional Securities...........................................................................2
Adjusted Treasury Rate..........................................................................2
Affiliate.......................................................................................2
Agent Member....................................................................................2
Applicable Procedures...........................................................................2
Applied Adjustment Amount.......................................................................2
Attributable Value..............................................................................2
Authenticating Agent............................................................................3
Bankruptcy Law..................................................................................3
Board of Directors..............................................................................3
Board Resolution................................................................................3
Business Day....................................................................................3
Clearstream.....................................................................................3
Company.........................................................................................3
Company Request.................................................................................3
Company Order...................................................................................3
Comparable Treasury Issue.......................................................................3
Comparable Treasury Price.......................................................................3
Consolidated Net Tangible Assets................................................................4
Corporate Trust Office..........................................................................4
Corporation.....................................................................................4
Default.........................................................................................4
Defaulted Interest..............................................................................4
Depositary......................................................................................4
Distribution Compliance Period..................................................................4
Dollar..........................................................................................4
$...............................................................................................4
DTC.............................................................................................4
Euroclear.......................................................................................4
Event of Default................................................................................4
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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PAGE
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Exchange Act....................................................................................4
Exchange Offer..................................................................................4
Exchange Registration Statement.................................................................4
Exchange Security...............................................................................5
Expiration Date.................................................................................5
GAAP............................................................................................5
Global Security.................................................................................5
Holder..........................................................................................5
Indebtedness....................................................................................5
Indenture.......................................................................................5
Interest Payment Date...........................................................................5
Issue Date......................................................................................5
Lien............................................................................................5
Liquidated Damages..............................................................................5
Maturity........................................................................................5
Xxxxx'x.........................................................................................6
Xxxxx'x Adjustment Amount.......................................................................6
Net Available Proceeds..........................................................................6
Non-U.S. Person.................................................................................6
Notice of Default...............................................................................6
Officers' Certificate...........................................................................6
Opinion of Counsel..............................................................................6
Original Securities.............................................................................7
Outstanding.....................................................................................7
Participant.....................................................................................7
Paying Agent....................................................................................7
Person..........................................................................................8
Predecessor Security............................................................................8
Principal Property..............................................................................8
Principal Subsidiary............................................................................8
Qualified Institutional Buyer or QIB............................................................8
Quotation Agent.................................................................................8
Redemption Date.................................................................................8
Reference Treasury Dealer Quotations............................................................8
Registration Rights Agreement...................................................................8
Regular Record Date.............................................................................8
Regulations S...................................................................................9
Regulation S Certificate........................................................................9
Regulations S Global Security...................................................................9
Regulation S Legend.............................................................................9
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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PAGE
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Regulation S Securities.........................................................................9
Responsible Officer.............................................................................9
Restricted Global Security......................................................................9
Restricted Period...............................................................................9
Restricted Securities...........................................................................9
Restricted Securities Certificate...............................................................9
Restricted Securities Legend....................................................................9
Rule 144........................................................................................9
Rule 144A.......................................................................................9
Rule 144A Securities............................................................................9
Sale and Lease-Back Transactions...............................................................10
Securities.....................................................................................10
Securities Act.................................................................................10
Securities Act Legend..........................................................................10
Security Register..............................................................................10
Security Registrar.............................................................................10
Special Record Date............................................................................10
S&P............................................................................................10
S&P Adjustment Amount..........................................................................10
Stated Maturity................................................................................10
Subsidiary.....................................................................................10
Subsidiary Guarantees..........................................................................10
Subsidiary Guarantors..........................................................................11
Successor Security.............................................................................11
Trust Indenture Act............................................................................11
Trustee........................................................................................11
United States..................................................................................11
Vice President.................................................................................11
Voting Stock...................................................................................11
Wholly Owned...................................................................................11
SECTION 102. Compliance Certificates and Opinions......................................................11
SECTION 103. Form of Documents Delivered to Trustee....................................................12
SECTION 104. Acts of Holders; Record Dates.............................................................13
SECTION 105. Notices, Etc., to Trustee, Company and Subsidiary Guarantors..............................15
SECTION 106. Notice to Holders; Waiver.................................................................15
SECTION 107. Conflict with Trust Indenture Act.........................................................16
SECTION 108. Effect of Headings and Table of Contents..................................................16
SECTION 109. Successors and Assigns....................................................................16
SECTION 110. Separability Clause.......................................................................16
SECTION 111. Benefits of Indenture.....................................................................16
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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PAGE
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SECTION 112. Governing Law.............................................................................17
SECTION 113. Legal Holidays............................................................................17
SECTION 114. Agent for Service; Submission to Jurisdiction; Waiver of Immunities.......................17
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally...........................................................................18
SECTION 202. Form of Face of Security..................................................................19
SECTION 203. Form of Reverse of Security...............................................................23
SECTION 204. Additional Provisions Required in Global Security.........................................27
SECTION 205. Form of Trustee's Certificate of Authentication...........................................28
SECTION 206. Form of Subsidiary Guarantee..............................................................28
ARTICLE THREE
The Securities
SECTION 301. Title and Terms...........................................................................32
SECTION 302. Denominations.............................................................................33
SECTION 303. Execution, Authentication, Delivery and Dating............................................33
SECTION 304. Temporary Securities......................................................................35
SECTION 305. Registration, Registration of Transfer and Exchange.......................................35
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..........................................40
SECTION 307. Payment of Interest; Interest Rights Preserved............................................41
SECTION 308. Persons Deemed Owners.....................................................................43
SECTION 309. Cancellation..............................................................................43
SECTION 310. Computation of Interest...................................................................43
SECTION 311. CUSIP/Common Code/ISIN Number.............................................................43
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture...................................................44
SECTION 402. Application of Trust Money................................................................45
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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PAGE
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ARTICLE FIVE
Default and Remedies
SECTION 501. Events of Default.........................................................................45
SECTION 502. Acceleration of Maturity; Rescission and Annulment........................................47
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee...........................48
SECTION 504. Trustee May File Proofs of Claim..........................................................48
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Subsidiary Guarantees........................................................49
SECTION 506. Application of Money Collected............................................................49
SECTION 507. Limitation on Suits.......................................................................50
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest..........................50
SECTION 509. Restoration of Rights and Remedies........................................................51
SECTION 510. Rights and Remedies Cumulative............................................................51
SECTION 511. Delay or Omission Not Waiver..............................................................51
SECTION 512. Control by Holders........................................................................51
SECTION 513. Waiver of Past Defaults...................................................................52
SECTION 514. Undertaking for Costs.....................................................................52
SECTION 515. Waiver of Stay or Extension Laws..........................................................52
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities of the Trustee........................................53
SECTION 602. Notice of Defaults........................................................................53
SECTION 603. Certain Rights of Trustee.................................................................53
SECTION 604. Not Responsible for Recitals or Issuance of Securities....................................55
SECTION 605. May Hold Securities.......................................................................55
SECTION 606. Money Held in Trust.......................................................................55
SECTION 607. Compensation and Reimbursements...........................................................56
SECTION 608. Disqualification; Conflicting Interests...................................................56
SECTION 609. Corporate Trustee Required; Eligibility...................................................57
SECTION 610. Resignation and Removal; Appointment of Successor.........................................57
SECTION 611. Acceptance of Appointment by Successor....................................................58
SECTION 612. Merger, Conversion, Consolidation or Succession to Business...............................59
SECTION 613. Preferential Collection of Claims Against Company
and Subsidiary Guarantors....................................................59
SECTION 614. Appointment of Authenticating Agent.......................................................59
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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PAGE
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Address of Holders...................................61
SECTION 702. Preservation of Information; Communications to Holders....................................61
SECTION 703. Reports by Trustee........................................................................62
SECTION 704. Reports by Company........................................................................62
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company and Subsidiary Guarantors May Consolidate, Etc. Only on
Certain Terms................................................................63
SECTION 802. Successor Substituted.....................................................................64
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders........................................64
SECTION 902. Supplemental Indentures with Consent of Holders...........................................65
SECTION 903. Execution of Supplemental Indentures......................................................66
SECTION 904. Effect of Supplemental Indentures.........................................................66
SECTION 905. Conformity with Trust Indenture Act.......................................................67
SECTION 906. Reference in Securities to Supplemental Indentures........................................67
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal and Interest........................................................67
SECTION 1002. Maintenance of Office or Agency..........................................................67
SECTION 1003. Money for Security Payments to be Held in Trust..........................................68
SECTION 1004. Existence................................................................................69
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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PAGE
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SECTION 1005. Maintenance of Properties................................................................69
SECTION 1006. Payment of Taxes and Other Claims........................................................70
SECTION 1007. Limitation on Liens......................................................................70
SECTION 1008. Limitation on Sale and Lease-Back Transactions...........................................71
SECTION 1009. Statement by Officers as to Default; Compliance Certificates.............................72
SECTION 1010. Waiver of Certain Covenants..............................................................73
SECTION 1011. Available Information....................................................................73
SECTION 1012. Acquisition of Securities................................................................73
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article.................................................................73
SECTION 1102. Election to Redeem; Notice to Trustee....................................................74
SECTION 1103. Selection by Trustee of Securities to Be Redeemed........................................74
SECTION 1104. Notice of Redemption.....................................................................74
SECTION 1105. Securities Payable on Redemption Date....................................................75
SECTION 1106. Securities Redeemed in Part..............................................................76
ARTICLE TWELVE
Subsidiary Guarantee
SECTION 1201. Subsidiary Guarantee.....................................................................76
SECTION 1202. Execution and Delivery of Subsidiary Guarantees..........................................78
SECTION 1203. Release of Subsidiary Guarantors.........................................................79
ARTICLE THIRTEEN
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be Called................................................80
SECTION 1302. Call, Notice and Place of Meetings.......................................................80
SECTION 1303. Persons Entitled to Vote at Meetings.....................................................80
SECTION 1304. Quorum; Action...........................................................................81
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings...................................................................81
SECTION 1306. Counting Votes and Recording Action of Meetings..........................................82
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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PAGE
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ANNEX A Form of Restricted Securities Certificate
ANNEX B Form of Regulation S Certificate
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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INDENTURE, dated as of September 30, 2002, among Staples,
Inc., a corporation duly organized and existing under the laws of Delaware
(herein called the "Company"), having its principal office at 000 Xxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, each of the Subsidiary Guarantors (as
hereinafter defined) and HSBC Bank USA, a banking corporation and trust company
duly organized and existing under the laws of New York, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS
The Company has duly authorized the creation of an issue of
its 7.375% Senior Notes due October 1, 2022 of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
The Company and the presently existing Subsidiary Guarantors
are members of the same consolidated group of companies and are engaged in
related businesses; the presently existing Subsidiary Guarantors will derive
direct and indirect economic benefit from the issuance of the Securities;
accordingly, each presently existing Subsidiary Guarantor has duly authorized
the execution and delivery of this Indenture to provide for its full,
unconditional, irrevocable and joint and several guarantee of the Securities.
All things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, to make the Subsidiary Guarantees
(as hereinafter defined) of each of the Subsidiary Guarantors, when executed by
the respective Subsidiary Guarantors and endorsed on the Securities, the valid
obligations of the respective Subsidiary Guarantors, and to make this Indenture
a valid agreement of the Company and each of the Subsidiary Guarantors 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 agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. DEFINITIONS.
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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 accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(3) unless the context otherwise requires, any reference to an
"Article" or a "Section", or to an "Annex", refers to an Article or
Section of, or to an Annex attached to, this Indenture, as the case may
be;
(4) unless the context otherwise requires, any reference to a
statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended
from time to time; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Securities" has the meaning set forth in the form
of the Securities contained in Section 203.
"Adjusted Treasury Rate" has the meaning set forth in the form
of the Securities contained in Section 203.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in, DTC.
"Applicable Adjustment Amount" shall have the meaning set
forth in the form of Securities in Section 203.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of DTC applicable to such transaction and as in effect from
time to time.
"Attributable Value" in respect of any Sale and Lease-Back
Transaction means, as of the time of determination, the lesser of (i) the sale
price of the Principal Property so leased multiplied by a fraction the numerator
of which is the remaining portion of the base term of the lease included in such
Sale and Lease-Back Transaction and the denominator of which is the base term of
such lease, and (ii) the total obligation (discounted to present value at the
rate of interest applicable to the Securities then Outstanding at the time of
determination compounded quarterly) of the lessee for rental payments (other
than amounts required to be paid on account of
- 2 -
property taxes as well as maintenance, repairs, insurance, water rates and other
items which do not constitute payments for property rights) during the remaining
portion of the base term of the lease included in such Sale and Lease-Back
Transaction.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
"Bankruptcy Law" means, Title 11 of the United States Code
entitled "Bankruptcy," as now and hereafter in effect, or any successor statute
or any other United States federal, state or local law or law of any other
jurisdiction relating to bankruptcy, insolvency, winding up, liquidation,
reorganization or relief of debtors, whether in effect on the date hereof or
hereafter.
"Board of Directors" means, with respect to the Company,
either the board of directors of the Company or any committee of that board duly
authorized to act for it in respect hereof, and with respect to any Subsidiary
Guarantor, either the board of directors of such Subsidiary Guarantor or any
committee of that board duly authorized to act for it in respect hereof.
"Board Resolution" means, with respect to the Company or a
Subsidiary Guarantor, a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company or such Subsidiary Guarantor, as the case may
be, to have been duly adopted by its Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"Business Day" means, with respect to any particular place,
each Monday, Tuesday, Wednesday, Thursday and Friday, other than any such day on
which banking institutions in The City of New York, New York or London, England
are authorized or obligated by law or executive order to close and with respect
to any due date for the payment of principal or interest in respect of any
Security, a day on which commercial banks and foreign exchange markets are open
for general business in the place of presentation.
"Clearstream" means Clearstream Banking, S.A.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Comparable Treasury Issue" has the meaning set forth in the
form of the Securities contained in Section 203.
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"Comparable Treasury Price" has the meaning set forth in the
form of the Securities contained in Section 203.
"Consolidated Net Tangible Assets" of the Company means the
aggregate amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom (a) all current liabilities
(excluding any indebtedness for money borrowed having a maturity of less than 12
months from the date of the most recent consolidated balance sheet of the
Company but which by its terms is renewable or extendable beyond 12 months from
such date at the option of the borrower) and (b) all goodwill, trade names,
patents, unamortized debt discount and expense and any other like intangibles,
all as set forth on the most recent consolidated balance sheet of the Company
and computed in accordance with GAAP.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Indenture is
located at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Issuer
Services, or at any other time at such other address as the Trustee may
designate from time to time by notice to the Holders.
"corporation" means a corporation, association, company, joint
stock company, limited liability company, partnership or business trust.
"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 307.
"Depositary" means, with respect to any Security, a clearing
agency trust which is registered as such under the Exchange Act and is
designated by the Company to act as Depositary for such Security (or any
successor clearing agency as registered).
"Distribution Compliance Period" has the meaning specified in
Section 201.
"dollar" and "$" means the lawful currency of the United
States of America.
"DTC" means The Depository Trust Company, a New York
corporation.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934
(including any successor act thereto), as it may be amended from time to time,
and (unless the context otherwise requires) includes the rules and regulations
of the Commission promulgated thereunder.
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"Exchange Offer" has the meaning specified in the Registration
Rights Agreement.
"Exchange Registration Statement" has the meaning specified in
the Registration Rights Agreement.
"Exchange Security" means any Security issued in exchange for
an Original Security or Original Securities pursuant to the Exchange Offer and
any Security with respect to which the next preceding Predecessor Security of
such Security was an Exchange Security.
"Expiration Date" has the meaning specified in Section 104.
"GAAP" means generally accepted accounting principles in the
United States consistently applied as in effect on the date of this Indenture.
"Global Security" means a Security that is registered in the
Security Register in the name of a Depositary or a nominee thereof.
"Holder" means, with respect to any Security, a Person in
whose name such Security is registered in the Security Register.
"Indebtedness" of any Person means (without duplication), with
respect to any Person, (i) every obligation of such Person for money borrowed,
(ii) every obligation of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) every reimbursement obligation of such Person
with respect to letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person and (iv) every obligation of the type
referred to in clauses (i) through (iii) of another Person the payment of which
such Person has guaranteed or is responsible or liable for, directly or
indirectly, as obligor, guarantor or otherwise (but only, in the case of clause
(iv), to the extent such Person has guaranteed or is responsible or liable for
such obligations).
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the Annexes attached to this instrument.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Issue Date" means the date on which the Securities are
originally issued.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, security interest,
lien, encumbrance, or other security arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
- 5 -
"Liquidated Damages" has the meaning specified in the
Registration Rights Agreement.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, exercise of the repurchase right or
otherwise.
"Moody's" means Xxxxx'x Investor Services, Inc. and its
successors.
"Moody's Adjustment Amount" shall have the meaning set forth
in the form of securities in Section 203.
"Net Available Proceeds" from any Sale and Lease-Back
Transaction by any Person means cash or readily marketable cash equivalents
received (including by way of sale or discounting of a note, installment
receivable or other receivable, but excluding any other consideration received
in the form of assumption by the acquiree of Indebtedness or obligations
relating to the properties or assets that are the subject of such Sale and
Lease-Back Transaction or received in any other noncash form) therefrom by such
Person, net of (i) all legal, title and recording tax expenses, commissions and
other fees and expenses incurred and all Federal, state, provincial, foreign and
local taxes required to be accrued as a liability as a consequence of such Sale
and Lease-Back Transaction; (ii) all payments made by such Person or its
Subsidiaries on any Indebtedness which is secured in whole or in part by any
such properties and assets in accordance with the terms of any Lien upon or with
respect to any such properties and assets or which must, by the terms of such
Lien, or in order to obtain a necessary consent to such Sale and Lease-Back
Transaction or by applicable law, be repaid out of the proceeds from such Sale
and Lease-Back Transaction; and (iii) all distributions and other payments made
to minority interest holders in Subsidiaries of such Person or joint ventures as
a result of such Sale and Lease-Back Transaction; PROVIDED, HOWEVER, that for
purposes of clause (ii) of Section 1008 hereof the amount of Net Available
Proceeds to be applied to any acquisition of Principal Properties or retirement
of Securities or other Indebtedness shall be reduced by an amount equal to the
sum of (A) an amount equal to the redemption price with respect to such
Securities delivered within 180 days after the effective date of such Sales and
Lease-Back Transaction to the Trustee for retirement and cancellation and (B)
the principal amount, plus any premium or fee paid in connection with a
redemption in accordance with the terms, of such other Indebtedness voluntarily
retired by the Company within such 180-day period, excluding in each case
retirements pursuant to mandatory sinking fund or prepayment provisions and
payments at maturity.
"Non-U.S. Person" means a Person who is not a U.S. Person, as
defined in Regulation S.
"Notice of Default" means a written notice of the kind
specified in Section 501(3).
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant
- 6 -
Secretary, of the Company or a Subsidiary Guarantor, as the case may be, and
delivered to the Trustee.
"Opinion of Counsel" means, as to the Company or a Subsidiary
Guarantor, a written opinion of counsel, who may be counsel for the Company or
such Subsidiary Guarantor, including counsel employed by the Company or a
Subsidiary Guarantor, as the case may be, and who shall be acceptable to the
Trustee, delivered to the Trustee.
"Original Securities" means all Securities other than Exchange
Securities.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or any Subsidiary Guarantor) in
trust or set aside and segregated in trust by the Company or a
Subsidiary Guarantor (if the Company or a Subsidiary Guarantor shall
act as a Paying Agent) for the Holders of such Securities; PROVIDED
that, if such Securities are to be redeemed, notice of such redemption
shall have been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee shall have been made; and
(iii) Securities that have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, Securities owned by the Company, any Subsidiary
Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, of any Subsidiary Guarantor or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities that a responsible officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company, a Subsidiary Guarantor or
any other obligor upon the Securities or any Affiliate of the Company, of any
Subsidiary Guarantor or of such other obligor.
- 7 -
"Participant" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Paying Agent" means any Person authorized by the Company to
pay the principal of or interest on any Securities on behalf of the Company and,
as of the date of this Indenture, shall include the Corporate Trust Office of
the Trustee in the City of Boston.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any real property or any permanent
improvement thereon owned by the Company or any of its Subsidiaries including,
without limitation, any office, store, warehouse, manufacturing facility or
plant or any portion thereof, and any equipment located at or comprising a part
of any such property, having a net book value, as of the date of determination,
in excess of 1% of the most recently calculated Consolidated Net Tangible Assets
of the Company.
"Principal Subsidiary" means any Subsidiary which owns any
Principal Property.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Treasury Dealer Quotations" has the meaning set
forth in the form of the Securities contained in Section 203.
"Registration Rights Agreement" means the Registration Rights
Agreement among the Company, the Subsidiary Guarantors and the Initial
Purchasers dated as of September 30 , 2002, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms and, with respect to any Additional Securities, one or more registration
rights agreements between the Company and the other parities thereto, as such
agreement(s) may be amended, modified or supplemented from time to time,
relating to rights
- 8 -
given by the Company to the purchaser of Additional Securities to register such
Additional Securities under the Securities Act.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the fifteenth day (regardless of whether a Business Day) next
preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" means a certificate substantially
in the form set forth in Annex B.
"Regulation S Global Security" has the meaning specified in
Section 201.
"Regulation S Legend" means a legend substantially in the form
of the legend required in the form of Security set forth in Section 202 to be
placed on each Regulation S Security.
"Regulation S Securities" means all Securities required
pursuant to Section 305(b) to bear a Regulation S legend. Such term includes the
Regulation S Global Security.
"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the Corporate Trust Office, including any Vice
President, Managing Director, Assistant Vice President, Secretary, Assistant
Secretary or Assistant Treasurer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers, and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge and familiarity
with the particular subject.
"Restricted Global Security" has the meaning specified in
Section 201.
"Restricted Period" means the period of 41 consecutive days
beginning on and including the later of (i) the day on which Securities are
first offered to persons other than distributors (as defined in Regulation S) in
reliance on Regulation S and (ii) the day on which the closing of the offering
of Securities pursuant to the Purchase Agreement occurs.
"Restricted Securities" means all Securities required pursuant
to Section 305(c) to bear a Restricted Securities Legend. Such term includes the
Restricted Global Security.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Annex A.
"Restricted Securities Legend" means a legend substantially in
the form of the legend required in the form of Security set forth in Section 202
to be placed on each Restricted Security.
"Rule 144" means Rule 144 under the Securities Act.
- 9 -
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all the Securities initially
distributed in connection with the offering of Securities by the Initial
Purchasers in reliance upon Rule 144A.
"Sale and Lease-Back Transaction" of any Person means an
arrangement with any lender or investor or to which such lender or investor is a
party providing for the leasing by such Person of any Principal Property that,
more than 12 months after (i) the completion of the acquisition, construction,
development or improvement of such Principal Property or (ii) the placing in
operation of such Principal Property or of such Principal Property as so
constructed, developed or improved, has been or is being sold, conveyed,
transferred or otherwise disposed of by such Person to such lender or investor
or to any Person to whom funds have been or are to be advanced by such lender on
the security of such Principal Property. The term of such arrangement, as of any
date (the "measurement date"), shall end on the date of the last payment of rent
or any other amount due under such arrangement on or prior to the first date
after the measurement date on which such arrangement may be terminated by the
lessee, at its sole option, without payment of a penalty.
"Securities" means the Original Securities and the Exchange
Securities and Additional Securities, if any.
"Securities Act" means the United States Securities Act of
1933 (including any successor act thereto), as it may be amended from time to
time, and (unless the context otherwise requires) includes the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
"Securities Act Legend" means the Restricted Securities Legend
and/or the Regulation S Legend.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"S&P" means Standard & Poor's Rating Services, a division of
XxXxxx-Xxxx, Inc., and its successors.
"S&P Adjustment Amount" shall have the meaning set forth in
the form of Securities in Section 203.
"Stated Maturity", when used with respect to any Security or
any installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or a Person or by one or more other
- 10 -
Subsidiaries of the Company or that Person. For the purposes of this definition,
"voting stock" means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
"Subsidiary Guarantees" means the Guarantees of each
Subsidiary Guarantor in the form of Section 205 and as provided in Article
Twelve.
"Subsidiary Guarantors" means (i) Staples the Office
Superstore, Inc., a Delaware corporation, Staples the Office Superstore East,
Inc., a Delaware corporation, and Staples Contract & Commercial, Inc., a
Delaware corporation, Hackensack Funding, LLC, a Delaware limited liability
company, and Rochester Capital, LLC, a Delaware limited liability company and
(ii) any successor of the foregoing; in each case (i) and (ii) until such
Subsidiary Guarantor ceases to be such in accordance with Section 1203 hereof.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Trust Indenture Act" means the United States Trust Indenture
Act of 1939 as in force at the date as of which this instrument was executed,
except as provided in Section 905; PROVIDED, HOWEVER, that, in the event the
Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture Act of
1939, as amended.
"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 such successor Trustee.
"United States" means the United States of America (including
the States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"Vice President", when used with respect to the Company, each
Subsidiary Guarantor or the Trustee, means any vice president, regardless of
whether designated by a number or a word or words added before or after the
title "vice president".
"Voting Stock" of a Person means all classes of capital stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned" means, when used in connection with any
Subsidiary, a Subsidiary of which all of the issued and outstanding shares of
Voting Stock (except shares required as directors' qualifying shares) are owned
by the Company and/or one or more Wholly Owned Subsidiaries.
- 11 -
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
------------------------------------
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company and any
Subsidiary Guarantor and any other obligor on the Securities, as appropriate,
shall each furnish to the Trustee such certificates and opinions as may be
required hereunder or under the Trust Indenture Act. Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by an officer of the Company, or an Opinion of Counsel if to be given by counsel
and shall comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual or firm signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual
or firm, he or it has made such examination or investigation as is
necessary to enable him or it to express an informed opinion as to
whether such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such individual or firm, such condition or covenant has been complied
with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
--------------------------------------
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company, any
Subsidiary Guarantor or other obligor, as applicable, 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
- 12 -
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
-----------------------------
Any request, demand, authorization, direction, notice,
consent, waiver or other action permitted or required 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 agent of such Holders duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are received by the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
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.
The ownership of Securities shall be proved by the Security
Register.
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, the
Paying Agent, any Subsidiary Guarantor or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
The Company may set any day as a record date, written notice
of which will be sent to the Trustee, for the purpose of determining the Holders
of Outstanding Securities entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of Securities,
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 next paragraph. If
not set by the Company prior to the first
- 13 -
solicitation of a Holder made by any Person in respect of any such matter
referred to in the foregoing sentence, the record date for any such matter shall
be the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 701) prior to such first
solicitation. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders
after such record date; PROVIDED that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities on such record date.
Nothing in this paragraph shall be construed to prevent the Company from setting
a new record date for any action for which a record date has previously 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 on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Company, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Xxxxxxx 000, (xxx) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; PROVIDED that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such 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 previously 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 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, the proposed action
by Holders and the applicable Expiration Date to be given to the Company in
writing and to each Holder of Securities in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section,
the party hereto that sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; PROVIDED that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section
106, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwith-
- 14 -
standing the foregoing, no Expiration Date shall be later than the 180th day
after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 105. NOTICES, ETC., TO TRUSTEE, COMPANY AND SUBSIDIARY GUARANTORS.
------------------------------------------------------------
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any
Subsidiary Guarantor shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with the Trustee and
received at its Corporate Trust Office, or
(2) the Company or any Subsidiary Guarantor 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, in the case of the Company addressed to it at
the address of its principal office specified in the first paragraph of
this instrument, Attention: Chief Financial Officer, or at any other
address previously furnished in writing to the Trustee by the Company
and, in the case of any Subsidiary Guarantor, to it at the address of
the Company's principal office specified in the first paragraph of this
instrument, Attention Chief Financial Officer, or at any other address
previously furnished in writing to the Trustee by such Subsidiary
Guarantor.
The Company and any Subsidiary Guarantor shall promptly
transmit to the Trustee any request, demand, authorization, direction, notice,
consent, waiver or Act received from any Holder.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
-------------------------
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register on the date such notice is mailed not later than the latest date (if
any), and not earlier than the earliest date (if any), prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall
- 15 -
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.
Except as otherwise provided herein, all notices to Holders
will be valid if published in a leading English language daily newspaper or
newspapers published in New York City or such other English language daily
newspaper with general circulation in the United States, as the Trustee may
approve. Any notice will be deemed to have been given on the date of publication
or, if so published more than once or on different dates, on the date of the
first publication. It is expected that publication will normally be made in the
WALL STREET JOURNAL (New York edition). If publication as provided above is not
practicable, notice will be given in such other manner, and will be deemed to
have been given on such date, as the Trustee may approve.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
---------------------------------
This Indenture, the Company, the Subsidiary Guarantors and the
Trustee shall be deemed for all purposes hereof to be subject to and governed by
the Trust Indenture Act to the same extent as would be the case if this
Indenture were so qualified on the date hereof. If any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act that is
required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified
or to be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
----------------------------------------
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction of any
provision hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
----------------------
All covenants and agreements in this Indenture by the Company
and any Subsidiary Guarantor shall bind their successors and assigns, regardless
of whether so expressed.
SECTION 110. SEPARABILITY CLAUSE.
-------------------
In case any provision in this Indenture, the Securities or the
Subsidiary Guarantees 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.
- 00 -
XXXXXXX 000. BENEFITS OF INDENTURE.
---------------------
Nothing in this Indenture or in the Securities or the
Subsidiary Guarantees, express or implied, shall give to any Person, other than
the parties hereto, the Holders of Securities and their respective successors
hereunder any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
-------------
THIS INDENTURE, THE SECURITIES AND THE SUBSIDIARY GUARANTEES
ENDORSED THEREON SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
SECTION 113. LEGAL HOLIDAYS.
--------------
If any Interest Payment Date or Redemption Date, other than at
Maturity, for any Security would otherwise be a day that is not a Business Day,
such Interest Payment Date or Redemption Date shall be postponed to the next day
that is a Business Day. If the Stated Maturity of any Security shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Securities) payment of interest or principal need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made at the Stated Maturity of such Security, PROVIDED that no
interest shall accrue for the period from and after such Stated Maturity.
SECTION 114. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES.
--------------------------------------------------------
By the execution and delivery of this Indenture, each of the
Company, Staples the Office Superstore East, Inc., Staples Contract &
Commercial, Inc., Hackensack Funding, LLC and Rochester Capital, LLC (i)
acknowledges that it has, by separate written instrument, irrevocably designated
and appointed CT Corporation System as its authorized agent upon which process
may be served in any suit or proceeding arising out of or relating to the
Securities, the Subsidiary Guarantees or this Indenture that may be instituted
in any Federal or State court in the Borough of Manhattan, The City of New York
or brought under Federal or State securities laws or brought by the Trustee in
its capacity as a trustee hereunder, and acknowledges that CT Corporation System
has accepted such designation, (ii) submits to the jurisdiction of any such
court in any such suit or proceeding and waives, to the extent possible, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding or any claim of inconvenient forum, and (iii) agrees that service of
process upon CT Corporation System shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. The Company and each
such Subsidiary Guarantor further agrees to take any and all action, including
the execution and filing of any and all such documents and instruments, as may
be necessary to continue such designation and appointment of CT Corporation
System in full force and effect so long as this Indenture shall be in full force
and effect and for the continuous period from the date
- 17 -
hereof through and including the date which is 550 calendar days after the date
upon which the last of the Securities shall be outstanding. The Trustee agrees
to mail or deliver a copy of any service referred to in (iii) above to the
Chairman and Chief Executive Officer of the Company at its principal office at
the address set out on page 1 of this Indenture or at any other address
previously notified in writing to the Trustee.
To the extent that the Company or any Subsidiary Guarantor has
or hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment before judgment,
attachment in aid of execution or otherwise) with respect to itself or its
property, it hereby irrevocably waives such immunity in respect of its
respective obligations under this Indenture and the Securities to the fullest
extent permitted by law.
ARTICLE TWO
Security Forms
SECTION 201. FORMS GENERALLY.
---------------
The Securities, the Subsidiary Guarantees to be endorsed
thereon and the Trustee's certificates of authentication shall be in
substantially the forms set forth in this Article, 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 depositary
thereof or as may, consistently herewith, be determined by the officers
executing such Securities or Subsidiary Guarantees, as the case may be, as
evidenced by their execution of such Securities or Subsidiary Guarantees, as the
case may be.
Upon their original issuance, Rule 144A Securities shall be
issued in the form of one or more Global Securities registered in the name of
Cede & Co. as nominee of the Depositary or its nominee and deposited with the
Trustee, as custodian for the Depositary, for credit by the Depositary to the
respective accounts of beneficial owners of the Securities represented thereby
(or such other accounts as they may direct). Such Global Securities and all
other Securities evidencing the debt, or any portion of the debt, initially
evidenced by such Global Securities, other than Securities transferred or
exchanged upon certification as provided in Section 305, other than the
Regulation S Global Securities, are collectively herein called the "Restricted
Global Securities".
Upon their original issuance, Regulation S Securities shall be
issued in the form of one or more Global Securities registered in the name of
the Depositary, or its nominee and deposited with the Trustee, as custodian for
the Depositary, for credit to the respective accounts of the beneficial owners
of the Securities represented thereby (or such other accounts as they may
direct), PROVIDED that upon such deposit all such Securities shall be credited
to or through accounts maintained by the Depositary by or on behalf of Euroclear
or Clearstream. Such Global Securities are collectively herein called the
"Regulation S Global Securities".
- 18 -
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Clearstream" and "Customer Handbook" of Clearstream
shall be applicable to transfers of beneficial interests in the Regulation S
Securities that are held by Participants through Euroclear or Clearstream.
The definitive Securities and Subsidiary Guarantees 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
or Subsidiary Guarantees, as the case may be, as evidenced by their execution of
such Securities or Subsidiary Guarantees, as the case may be.
In certain cases described elsewhere herein, the legends set
forth in the first three paragraphs of Section 202 may be omitted from
Securities issued hereunder.
Rule 144A Global Securities and Regulation S Global Securities
substantially in the form of Security set forth in Sections 202 and 203 with
such applicable legends as are provided for in Section 202, except as otherwise
permitted herein.
SECTION 202. FORM OF FACE OF SECURITY.
------------------------
[INCLUDE IF SECURITY IS A RESTRICTED SECURITY - THIS SECURITY
HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), OR IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A)
TO STAPLES, INC. (THE "COMPANY") OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE),
(D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS), OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY
- 19 -
TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTIONS,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
[IF REGULATION S SECURITIES, THEN INSERT - THIS SECURITY HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER
SUCH LAWS.]
- 20 -
STAPLES, INC.
7.375% SENIOR NOTES DUE 2012
CUSIP NO. __________
No. __________ $________
Staples, Inc., a corporation organized under the laws of the
state of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to __________________, or registered assigns,
the principal sum of _____________________ Dollars (which principal amount may
from time to time be increased or decreased to such other principal amounts by
adjustments made on the records of the Trustee hereinafter referred to in
accordance with the Indenture) on October 1, 2012, and to pay interest thereon
from September 30, 2002 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on April 1 and
October 1 in each year commencing April 1, 2003 at the rate of 7.375% per annum,
until the principal hereof is paid or made available for payment, and to the
extent that the payment of such interest shall be legally enforceable at the
interest rate then in effect on any overdue principal and on any overdue
installment of interest and Liquidated Damages (as defined below) until paid.
[IF ORIGINAL SECURITIES, THEN INSERT: The Company shall also
pay liquidated damages ("Liquidated Damages") in accordance with the provisions
of Section 6 of the Registration Rights Agreement referred to below.
The interest [IF ORIGINAL SECURITIES, THEN INSERT: and
Liquidated Damages] 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 fifteenth day (regardless of whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date. If
any Interest Payment Date falls on a day that is not a Business Day, it shall be
postponed to the following Business Day. Any such interest [IF ORIGINAL
SECURITIES, THEN INSERT: and Liquidated Damages] 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 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 may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture. Payment
of the principal of and interest [IF ORIGINAL SECURITIES, THEN INSERT: and
Liquidated Damages] on this Security will be made at the office or agency of the
Trustee or any Paying Agent maintained for that purpose in the City of New York,
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
PROVIDED, HOWEVER, that at the option of the
- 21 -
Company payment of interest [IF ORIGINAL SECURITIES, THEN INSERT: and Liquidated
Damages] may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
- 22 -
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
STAPLES, INC.
By:________________________________
Name:
Title:
Attest:
-----------------------------------
Name:
Title:
SECTION 203. FORM OF REVERSE OF SECURITY.
---------------------------
This Security is one of a duly authorized issue of Securities
of the Company designated as its 7.375% Senior Notes due 2012 (herein called the
Securities), limited initially (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount to $325,000,000, issued and to
be issued under an Indenture, dated as of September 30, 2002 (herein called the
Indenture), which term shall have the meaning assigned to it in such
instrument), among the Company, the Subsidiary Guarantors named therein), and
HSBC Bank USA, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture). The Securities will be unlimited in
aggregate principal amount. The Company may, without the consent of the Holders,
create and issue additional Securities (the Additional Securities) ranking
equally with the Securities and otherwise similar in all respects so that the
Additional Securities shall be consolidated and form a single series with the
Securities. The Company may not issue Additional Securities if an Event of
Default shall occur and be continuing with respect to the Securities. [IF
ORIGINAL SECURITIES, THEN INSERT: The Company may register a security
substantially identical to this Security (except that such Security will not
contain terms with respect to the payment of Liquidated Damages in accordance
with the Registration Rights Agreement (as described on the face of this
Security) or transfer restrictions) pursuant to an Exchange Offer Registration
Statement or, in lieu thereof, a Shelf Registration Statement (as such terms are
defined in the Registration Rights Agreement).] Reference is hereby made to the
Indenture and all indentures supplemental thereto for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Subsidiary Guarantors, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
At any time on or after the Issue Date, the interest payable
on the Securities will be subject to adjustment from time to time if either
Xxxxx'x Investors Services, Inc. ("Moody's) or Standard
- 23 -
& Poor's Ratings Services, a division of McGraw Hill, Inc. ("Standard & Poor's)
reduces its rating assigned to the Securities below Baa2, in the case of
Moody's, or below BBB-, in the case of Standard & Poor's, and in the event of
subsequent upgrades or downgrades by either Moody's or Standard & Poor's, the
coupon interest rate on the Securities will be further adjusted. The table below
illustrates the range of adjustments.
The coupon interest rate on the Securities will be equal to
the initial coupon interest rate of 7.375% plus the sum of the applicable
Moody's adjustment amount (the "Moody's Adjustment Amount") and the applicable
Standard & Poor's adjustment amount (the S&P Adjustment Amount", and together
with the Moody's Adjustment Amount, the "Applicable Adjustment Amount") set
forth in the table below; provided, however that the maximum Applicable
Adjustment Amount shall be 1.25% and in no event shall the coupon interest
exceed 8.625%. In no event shall the coupon interest rate payable on this
Security be less than 7.375%.
If either Moody's or Standard & Poor's changes the ratings on
the Securities, the interest rate on the Securities will be re-adjusted in
accordance with the table below:
---------------------------- -------------------------- -------------------------- --------------------------
XXXXX'X RATING MOODY'S ADJUSTMENT STANDARD & POOR'S STANDARD & POOR'S
AMOUNT RATING ADJUSTMENT AMOUNT
---------------------------- -------------------------- -------------------------- --------------------------
Baa2 or higher None BBB- or higher None
---------------------------- -------------------------- -------------------------- --------------------------
Baa3 0.25% BB+ 0.25%
---------------------------- -------------------------- -------------------------- --------------------------
Ba1 0.50% BB 0.50%
---------------------------- -------------------------- -------------------------- --------------------------
Ba2 0.75% BB- 0.75%
---------------------------- -------------------------- -------------------------- --------------------------
Ba3 1.00% B+ 1.00%
---------------------------- -------------------------- -------------------------- --------------------------
B1 or lower 1.25% B or lower 1.25%
---------------------------- -------------------------- -------------------------- --------------------------
The Moody's Adjustment Amount and the Standard & Poor's Adjustment
Amount are independent of each other and any payments of Liquidated Damages.
Any interest rate increase or decrease on this Security as a
consequence of a change in the ratings assigned to this series of Securities by
Moody's and/or Standard & Poor's as described herein, shall take effect on the
Interest Payment Date following such ratings change.
If Moody's or Standard & Poor's changes the rating categories that
they currently use, then the references to those categories in this section
shall refer to the appropriate successor rating categories.
[IF ORIGINAL SECURITIES, THEN INSERT: In addition to the
rights provided under the Indenture, Holders of Securities shall have the rights
set forth in the Registration Rights Agreement, dated as of September 30, 2002,
among the Company and the parties named on the signature pages thereof (the
"Registration Rights Agreement").]
The Securities are subject to redemption upon not less than 30 nor
more than 60 days' notice by mail, at any time, as a whole or in part, at the
election of the Company, at a Redemption Price equal to the greater of (a) 100%
of the principal amount of the Securities to be redeemed, plus
- 24 -
accrued interest and Liquidated Damages to the Redemption Date, and (b) as
determined by the Reference Treasury Dealer, the sum of the present values of
the remaining scheduled payments of principal, interest and Liquidated Damages
on the Securities to be redeemed (not including any portion of payments of
interest or Liquidated Damages accrued as of the Redemption Date), discounted to
the Redemption Date on a semi-annual basis at the Adjusted Treasury Rate plus 50
basis points, plus accrued interest and Liquidated Damages to the Redemption
Date.
The Redemption Price will be calculated assuming a 360-day
year consisting of twelve 30-day months.
"Adjusted Treasury Rate" means, with respect to any Redemption
Date, the rate per annum equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for that Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Reference Treasury Dealer as having a maturity
comparable to the remaining term of the Securities that would be utilized, at
the time of the selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities.
"Comparable Treasury Price" means, with respect to any
Redemption Date: (a) the average of the Reference Treasury Dealer Quotations for
the Redemption Date, after excluding the highest and lowest of the Reference
Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than three
Reference Treasury Dealer Quotations, the average of all Reference Treasury
Dealer Quotations so received, or (c) if only one Reference Treasury Dealer
Quotation is received, such Quotation.
"Reference Treasury Dealer" means (a) each of X.X. Xxxxxx
Securities Inc. and Xxxxxxx Xxxxx Barney Inc. (or their respective affiliates
which are Primary Treasury Dealers), and their respective successors, PROVIDED,
HOWEVER, that if any of them ceases to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company shall
substitute another Primary Treasury Dealer; and (b) any other Primary Treasury
Dealer selected by the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third business day preceding that Redemption Date.
In the event of redemption of this Security in part only, a
new Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The Securities do not have the benefit of any sinking fund
obligations.
- 25 -
In the event of a deposit or withdrawal of an interest in this
Security (including upon an exchange, transfer, redemption or repurchase of this
Security in part only) effected in accordance with the Applicable Procedures,
the Security Registrar, upon receipt of notice of such event from the
Depositary's custodian for this Security, shall make an adjustment on its
records to reflect an increase or decrease of the Outstanding principal amount
of this Security resulting from such deposit or withdrawal, as the case may be.
[IF A GLOBAL SECURITY, THEN INSERT:
In the event of a deposit or withdrawal of an interest in this
Security (including upon an exchange or transfer of this Security) effected in
accordance with the Applicable Procedures, the Security Registrar, upon receipt
of notice of such event from the Depositary's custodian for this Security, shall
make an adjustment on its records to reflect an increase or decrease of the
Outstanding principal amount of this Security resulting from such deposit or
withdrawal, as the case may be.]
Subject to certain limitations in the Indenture, at any time
when the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon
the request of a Holder of a Restricted Security, the Company will promptly
furnish or cause to be furnished Rule 144A Information (as defined below) to
such Holder of Restricted Securities, or to a prospective purchaser of any such
security designated by any such Holder or holder, as the case may be, to the
extent required to permit compliance by any such holder with Rule 144A under the
Securities Act. "Rule 144A Information" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto).
If an Event of Default shall occur and be continuing, the
principal of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
As provided in the Indenture and subject to certain
limitations therein set forth, the obligations of the Company under the
Indenture, the Registration Rights Agreement and this Security are guaranteed
pursuant to Subsidiary Guarantees endorsed hereon as provided in the Indenture.
Each Holder, by holding this Security, agrees to all of the terms and provisions
of said Subsidiary Guarantees. The Indenture provides that a Subsidiary
Guarantor shall be released from its Subsidiary Guarantee upon compliance with
certain conditions. Unless the context otherwise requires, the Original
Securities (as defined in the Indenture) and the Exchange Securities (as defined
in the Indenture) shall constitute one series for all purposes under the
Indenture, including without limitation, amendments, waivers and redemptions.
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 Subsidiary Guarantors and the rights of the
Holders of the Securities under the Indenture at any time by the Company and the
Subsidiary Guarantors and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount
- 26 -
of the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company or the Subsidiary Guarantors with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security and the Liquidated Damages in accordance with the
terms of the Registration Rights Agreement 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 Trustee, 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 authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities 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 are exchangeable for a like aggregate principal amount of Securities
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.
Prior to due presentment of this Security for registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors 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 Subsidiary
Guarantors or the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of a
360-day year of twelve 30-day months.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE, THIS SECURITY AND THE SUBSIDIARY GUARANTEE
ENDORSED HEREON SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
- 27 -
SECTION 204. ADDITIONAL PROVISIONS REQUIRED IN GLOBAL SECURITY.
-------------------------------------------------
Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203, bear a legend in substantially the
following form:
[IF A GLOBAL SECURITY, INSERT - THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER
OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[IF A GLOBAL SECURITY TO BE HELD BY THE DEPOSITORY TRUST
COMPANY, INSERT - UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.]
SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
-----------------------------------------------
This is one of the Securities referred to in the
within-mentioned Indenture.
HSBC BANK USA,
AS TRUSTEE
By:________________________________
AUTHORIZED SIGNATURE
SECTION 206. FORM OF SUBSIDIARY GUARANTEE.
----------------------------
SUBSIDIARY GUARANTEE
For value received, each of the Subsidiary Guarantors named
below hereby jointly and severally fully and unconditionally guarantees to the
Holder of the Security upon which this Subsidiary Guarantee is endorsed, and to
the Trustee on behalf of such Holder, pursuant to the
- 28 -
Indenture [IF ORIGINAL SECURITIES, THEN INSERT: and the Registration Rights
Agreement] and to the Trustee and its successors and assigns, regardless of the
validity and enforceability of the Indenture, the Registration Rights Agreement,
the Securities or the obligations of the Company under the Indenture or the
Securities, that:
(i) the principal of and interest on the Securities, and any
Liquidated Damages payable pursuant to the Registration Rights
Agreement, will be promptly paid in full when due, whether at maturity,
by acceleration or otherwise, and interest on the overdue principal of
and interest on the Securities, to the extent lawful, and all other
payment obligations of the Company to the Holders or the Trustee
thereunder, under the Indenture [IF ORIGINAL SECURITIES, THEN INSERT:
or the Registration Rights Agreement] will be promptly paid in full,
all in accordance with the terms thereof, of the Indenture [IF ORIGINAL
SECURITIES, THEN INSERT: and of the Registration Rights Agreement]; and
(ii) in case of any extension of time for payment or renewal
of any Securities, that the same will be promptly paid in full when due
in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
Notwithstanding the foregoing, in the event that this
Subsidiary Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the liability
of each Subsidiary Guarantor under the Indenture and its Subsidiary Guarantee
shall be reduced to the maximum amount permissible under such fraudulent
conveyance or similar law.
If the Company shall default in the due and punctual payment
of any obligation under the Indenture [IF ORIGINAL SECURITIES, THEN INSERT: or
the Registration Rights Agreement], including under the Securities, without the
necessity of action by the Trustee or any Holder of Securities, the Subsidiary
Guarantor will promptly and fully make such payments in the same manner as
required to have been made by the Company.
To the extent permitted by law, the obligations of each
Subsidiary Guarantor hereunder shall be continuing, absolute and unconditional,
and shall not be impaired, modified, released or limited by any occurrence or
condition whatsoever, including, without limitation, (i) any compromise,
settlement, release, waiver, renewal, extension, indulgence or modification of,
or any change in, any of the obligations and liabilities of the Company
contained in the Securities, the Indenture [IF ORIGINAL SECURITIES, THEN INSERT:
or the Registration Rights Agreement] or of any other Subsidiary Guarantor
contained in the Indenture [IF ORIGINAL SECURITIES, THEN INSERT: or the
Registration Rights Agreement], (ii) any impairment, modification, release or
limitation of the liability of the Company or of any other Subsidiary Guarantor
in bankruptcy, or any remedy for the enforcement thereof, resulting from the
operation of any present or future provision of any applicable federal or state
bankruptcy, insolvency, reorganization or other similar laws or from the
decision of any court, (iii) the assertion or exercise by the Company, any other
Subsidiary Guarantor, or the Trustee of any rights or remedies under the
Securities or the Indenture [IF ORIGINAL SECURITIES, THEN INSERT: or the
Registration Rights Agreement] or their delay in or failure to assert or
exercise any such rights or remedies, (iv) the voluntary or involuntary
liquidation, dissolution, sale or other disposition of all or substantially all
of the assets, marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement,
- 29 -
composition or readjustment of, or other similar proceeding affecting, the
Company or any other Subsidiary Guarantor or any of their assets, or the
disaffirmance of the Indenture [IF ORIGINAL SECURITIES, THEN INSERT: , the
Registration Rights Agreement] or the Securities in any such proceeding, (v) the
release or discharge of the Company or any other Subsidiary Guarantor from the
performance or observance of any agreement, covenant, term or condition
contained in any of such instruments by operation of law, (vi) the
unenforceability of the Securities, the Indenture [IF ORIGINAL SECURITIES, THEN
INSERT: or the Registration Rights Agreement] or (vii) any other circumstance
which might otherwise constitute a legal or equitable discharge of a surety or
guarantor.
Each Subsidiary Guarantor hereby (i) waives diligence,
presentment, demand for payment, filing of claims with a court in the event of
the merger or bankruptcy of the Company, any right to require a proceeding first
against the Company or to realize on any collateral, protest, notice and all
demands whatsoever with respect to the payment obligations of the Company under
the Indenture, (ii) agrees that its obligations hereunder constitute a guarantee
of payment and not of collection and are not in any way conditional or
contingent upon any attempt to collect from or enforce against the Company or
upon any other condition or contingency, (iii) acknowledges that any agreement,
instrument or document evidencing the obligations of the Company under the
Indenture may be transferred and that the benefit of its obligations hereunder
shall extend to each holder of any agreement, instrument or document evidencing
such obligations without notice to them and (iv) covenants that its Subsidiary
Guarantee will not be discharged except by complete performance of the payment
obligations under the Securities and the Indenture [IF ORIGINAL SECURITIES, THEN
INSERT: and the Registration Rights Agreement].
Each Subsidiary Guarantor further agrees that if at any time
all or any part of any payment therefore applied by any person to any payment
obligation is, or must be, rescinded or returned for any reason whatsoever,
including, without limitation, the insolvency, bankruptcy or reorganization of
the Company or any other Subsidiary Guarantor, such obligation shall for the
purposes of the Subsidiary Guarantee, to the extent that such payment is or must
be rescinded or returned, be deemed to have continued in existence
notwithstanding such application, and the Subsidiary Guarantee made pursuant to
the Indenture shall continue to be effective or be reinstated, as the case may
be, as to such payment obligation as though such application had not been made.
Each Subsidiary Guarantor shall, to the extent of any payment
made by it pursuant to the Indenture [IF ORIGINAL SECURITIES, THEN INSERT: or
the Registration Rights Agreement], be subrogated to all rights of the Trustee
and the Holders of the Securities as to all payments and damages payable by the
Company with respect to which payments have been made by such Subsidiary
Guarantor, but, so long as any payment obligation remains outstanding, such
right of subrogation on the part of such Subsidiary Guarantor shall be subject
to the payment in full or discharge of all such payment obligations.
Each of the Subsidiary Guarantors shall have the right to seek
contribution from any other non-paying Subsidiary Guarantor so long as the
exercise of such right does not impair the rights of the Holders or the Trustee
under the Subsidiary Guarantees made pursuant to the Indenture.
The Subsidiary Guarantors or any particular Subsidiary
Guarantor shall be released from this Subsidiary Guarantee upon the terms and
subject to certain conditions provided in the
- 30 -
Indenture.
By delivery of a Supplemental Indenture to the Trustee in
accordance with the terms of the Indenture, each Person that becomes a
Subsidiary Guarantor after the date of the Indenture will be deemed to have
executed and delivered this Subsidiary Guarantee for the benefit of the Holder
of the Security upon which this Subsidiary Guarantee is endorsed with the same
effect as if such Subsidiary Guarantor was named below and has executed and
delivered this Subsidiary Guarantee.
All terms used in this Subsidiary Guarantee which are defined
in the Indenture referred to in the Security upon which this Subsidiary
Guarantee is endorsed shall have the meanings assigned to them in such
Indenture.
This Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Security upon which
this Subsidiary Guarantee is endorsed shall have been executed by the Trustee
under the Indenture by manual signature.
Reference is made to the Indenture for further provisions with
respect to this Subsidiary Guarantee.
THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
- 31 -
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has
caused this Subsidiary Guarantee to be duly executed.
[Insert Names of Subsidiary Guarantors]
By________________________
Name:
Title:
ARTICLE THREE
The Securities
SECTION 301. TITLE AND TERMS.
---------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is initially limited to
$325,000,000.00, and, subject to prior authorization by a Board Resolution,
Additional Securities of the same series which may be issued subsequently,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306 or 906.
The Company may issue Exchange Securities from time to time
pursuant to an Exchange Offer, in each case pursuant to a Board Resolution,
subject to Section 303, included in an Officers' Certificate delivered to the
Trustee, in authorized denominations in exchange for a like principal amount of
Original Securities. Upon any such exchange the Original Securities shall be
canceled in accordance with Section 309 and shall no longer be deemed
Outstanding for any purpose.
The Securities shall be known and designated as the 7.375%%
Senior Notes due 2012 of the Company. Their Stated Maturity shall be October 1,
2012, and they shall bear interest from September 30, 2002, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, as the case may be, at a per annum interest rate of 7.375% subject to an
adjustment of such interest rate in accordance with the interest rate
mechanicism set forth in the Form of Security set forth in Sections 202 and 203,
and further, with respect to Original Securities, subject to the payment of
Liquidated Damages in accordance with the terms of the Registration Rights
Agreement, until the principal thereof is paid or made available for payment;
the Company shall notify the Trustee and shall provide the Trustee with the
amount of Liquidated Damages to be paid by the Company on such Interest Payment
Date upon the occurrence of an event pursuant to which the Company is required
to pay Liquidated Damages in accordance with terms of the Registration Rights
Agreement, or reduce the payment of any such Liquidated Damages.
The principal of, interest and Liquidated Damages on the
Securities shall be payable at the office or agency of the Trustee or any Paying
Agent in the City of New York, New York maintained for such purpose and at any
other office or agency maintained by the Company for such
- 32 -
purpose; PROVIDED, HOWEVER, that at the option of the Company payment of
interest may be made by dollar check drawn on a bank in The City of New York,
New York mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register, or if a Holder has given transfer
instructions to the Company, in dollars by credit or transfer to a
dollar-denominated account (or any other account to which dollars may be
credited or transferred) specified by the payee.
The Company will pay principal on any Security upon
presentation and surrender of the Security at the specified office of the Paying
Agent or any additional or substitute paying agent by a dollar check drawn on a
bank in The City of New York, New York.
The Securities shall be guaranteed by the Subsidiary
Guarantors as provided in Article Twelve.
The Securities shall not have the benefit of any sinking fund
obligations.
Unless the context otherwise requires, the Original Securities
and the Exchange Securities shall constitute one series for all purposes under
this Indenture, including without limitation, amendments, waivers and
redemptions.
The Company will pay all stamp taxes and other duties, if any,
which may be imposed by the Unites States or any political subdivision thereof
or taxing authority thereof or therein with respect to the execution or delivery
of this Indenture, the issuance of the Global Securities or the exchange from
time to time of Global Securities.
The Company shall promptly notify the Trustee of any change in
ratings assigned to the Notes by Moody's or S&P.
SECTION 302. DENOMINATIONS.
-------------
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
----------------------------------------------
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its President, its
Chief Financial Officer or one of its Vice Presidents, under a facsimile of its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries.
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.
- 33 -
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Additional Securities
executed by the Company and having endorsed thereon the Subsidiary Guarantees
executed as provided in Section 1202 by the Subsidiary Guarantors to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Additional Securities with such Subsidiary Guarantees endorsed
thereon; and the Trustee in accordance with such Company Order shall
authenticate and deliver such Additional Securities with such Subsidiary
Guarantees endorsed thereon as in this Indenture provided and not otherwise.
At any time and from time to time after the execution and
delivery of this Indenture and after the effectiveness of an Exchange
Registration Statement under the Securities Act with respect thereto, the
Company may deliver Exchange Securities executed by the Company and having
endorsed thereon the Subsidiary Guarantees to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Exchange Securities and a like principal amount of Original Securities for
cancellation in accordance with Section 309 of this Indenture, and the Trustee
in accordance with the Company Order shall authenticate and deliver such
Securities. In authenticating such Exchange Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) the Exchange Securities have been duly authorized and
executed by the Company and, when duly authenticated by the Trustee and
delivered to the Holders of Original Securities in exchange for a like
principal amount of Original Securities, will be duly issued and
delivered and will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their
terms.
(b) the Exchange Registration Statement has become effective
under the Securities Act and, to our knowledge, (i) no stop order
suspending the effectiveness of the Exchange Registration Statement or
suspending or preventing the use of the prospectus contained as part of
the Registration Statement has been issued and (ii) no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission.
Each Security shall be dated the date of its authentication.
No Security or Subsidiary Guarantee shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Company shall be entitled, subject to Section 301, to
issue Additional Securities under this Indenture which shall have identical
terms as the Securities issued on the Issue Date, other than with respect to the
date of issuance, issue price and amount of interest payable on the first
payment date applicable to such series. The Securities issued on the Issue Date
and any Additional Securities shall be treated as a single series for all
purposes under this Indenture.
With respect to any Additional Securities, the Company shall
provide the Trustee
- 34 -
with appropriate evidence that the Additional Securities have been duly
authorized and issued and set forth in a Board Resolution and an Officers'
Certificate or such other appropriate evidence that the Additional Securities
have been duly authorized and issued, a copy of each of which shall be delivered
to the Trustee, containing the following information:
(1) the aggregate principal amount of such Additional Securities
to be authenticated and delivered pursuant to this Indenture;
and
(2) the issue price, the issue date and the common code, CUSIP and
ISIN numbers of such Additional Securities and the amount of
interest payable on the first payment date applicable thereto;
PROVIDED, HOWEVER, that no Additional Securities may be issued
at a price that would cause such Additional Securities to have
"original issue discount" within the meaning of Section 1273
of the U.S. Internal Revenue Code of 1986, as amended.
SECTION 304. TEMPORARY SECURITIES.
--------------------
Pending the preparation of definitive Securities, the Company
may execute, and upon receipt of a Company Order the Trustee shall authenticate
and deliver, temporary Securities 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 having endorsed thereon the Subsidiary Guarantees substantially
of the tenor of the definitive Subsidiary Guarantees in lieu of which they are
issued duly executed by the Subsidiary Guarantors and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities and Subsidiary Guarantees may determine, as evidenced
by their execution of such Securities and Subsidiary Guarantees.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations and like tenor having endorsed
thereon Subsidiary Guarantees executed by the Subsidiary Guarantors. Until so
exchanged the temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
---------------------------------------------------
(a) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 1002 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 transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
- 35 -
Upon surrender for registration of transfer of any Security at an office or
agency of the Company designated pursuant to Section 1002 for such purpose, and
subject to the other provisions of this Section 305, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denominations and of a like aggregate principal amount.
Such Security Register shall distinguish between Original
Securities and Exchange Securities.
At the option of the Holder, and subject to the other
provisions of this Section 305, Securities may be exchanged for other Securities
of any authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, and subject to the other
provisions of this Section 305, the Company shall execute, the Subsidiary
Guarantors shall execute the Subsidiary Guarantees endorsed thereon and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities and the Subsidiary Guarantees endorsed thereon
issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company and the respective Subsidiary Guarantors,
evidencing the same debt and Subsidiary Guarantees, and subject to the other
provisions of this Section 305, entitled to the same benefits under this
Indenture, as the Securities and Subsidiary Guarantees 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.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304 or 906 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 1104 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.
(b) CERTAIN TRANSFERS AND EXCHANGES. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in Global Securities of the kinds specified
in this Section 305(b) shall be made only in accordance with this Section
305(b). Transfers and exchanges subject to this Section 305(b) shall also be
subject to the other provisions of this Indenture that are not inconsistent with
this Section 305(b).
- 36 -
(1) LIMITATION ON TRANSFERS OF A GLOBAL SECURITY.
--------------------------------------------
(i) GENERAL RESTRICTIONS ON GLOBAL SECURITIES. A Global
Security may not be transferred, in whole or in part, to any
Person other than a Depositary or nominee or nominees
therefor, and no such transfer to any such other Person may be
registered; provided that this clause (1) shall not prohibit
any transfer of a Security that is issued in exchange for a
Global Security but is not itself a Global Security. No
transfer of a Security to any Person shall be effective under
this Indenture or the Securities unless and until such
Security has been registered in the name of such Person.
Nothing in this Section 305(b)(1) shall prohibit or render
ineffective any transfer of beneficial interest to a Person
who takes delivery in the form of another Security that is not
a Global Security as provided in Section 305(a), PROVIDED
that, if the Security to be transferred in whole or in part is
a Restricted Security, or is a Regulation S Security and the
transfer is to occur during the Restricted Period, then the
Trustee shall have received (i) a Restricted Securities
Certificate, satisfactory to the Trustee and duly executed by
the transferor Holder or his attorney duly authorized in
writing, in which case the transferee Holder shall take
delivery in the form of a Restricted Security or (ii) a
Regulation S Certificate, satisfactory to the Trustee and duly
executed by the transferor Holder or his attorney duly
authorized in writing, in which case the transferee Holder or
his attorney duly authorized in writing, in which case the
transferee Holder shall take delivery in the form of a
Regulation S Security.
(ii) RESTRICTED GLOBAL SECURITY TO REGULATION S GLOBAL
SECURITY. If the owner of a beneficial interest in the
Restricted Global Security wishes at any time to transfer such
interest to a Person who wishes to acquire the same in the
form of a beneficial interest in the Regulation S Global
Security, such transfer may be effected only in accordance
with the provisions of this Section 305(b)(ii) and Section
305(b)(iv) below and subject to the Applicable Procedures.
Upon receipt by the Trustee, as Security Registrar, of (i) an
order given by the Depositary or its authorized representative
directing that a beneficial interest in the Regulation S
Global Security in a specified principal amount be credited to
a specified Agent Member's account and that a beneficial
interest in the Restricted Global Security in an equal amount
be debited from another specified Agent Member's account and
(ii) a Regulation S Certificate, satisfactory to the Trustee
and duly executed by the Holder of such Restricted Global
Security or his attorney in fact duly authorized in writing,
then the Trustee, as Security Registrar but subject to Section
305(b)(iv) below, shall reduce the principal amount of such
Restricted Global Security and increase the principal amount
of such Regulation S Global Security by such specified
principal amount.
(iii) REGULATION S GLOBAL SECURITY TO RESTRICTED GLOBAL
SECURITY. If the owner of a beneficial interest in the
Regulation S Global Security wishes at any time to transfer
such interest to a Person who wishes to acquire the same in
the form of a beneficial interest in the Restricted Global
Security,
- 37 -
such transfer may be effected only in accordance with this
Section 305 (b)(iii) and subject to the Applicable Procedures.
Upon receipt by the Trustee, as Security Registrar, of (i) an
order given by the Depositary or its authorized representative
directing that a beneficial interest in the Restricted Global
Security in a specified principal amount be credited to a
specified Agent Member's account and that a beneficial
interest in the Regulation S Global Security in an equal
principal amount be debited from another specified Agent
Member's account and (ii) if such transfer is to occur during
the Restricted Period, a Restricted Securities Certificate,
satisfactory to the Trustee and duly executed by the Holder of
such Regulation S Global Security or his attorney in fact duly
authorized in writing, then the Trustee, as Security
Registrar, shall reduce the principal amount of such
Regulation S Global Security and increase the principal amount
of such Restricted Global Security by such specified principal
amount.
(iv) REGULATION S GLOBAL SECURITY TO BE HELD THROUGH EUROCLEAR
OR CLEARSTREAM DURING RESTRICTED PERIOD. The Company shall use
its best efforts to cause the Depositary to ensure that, until
the expiration of the Restricted Period, beneficial interests
in the Regulation S Global Security may be held only in or
through accounts maintained at the Depositary by Euroclear and
Clearstream (or by Agent Members acting for the account
thereof), and no person shall be entitled to effect any
transfer or exchange that would result in any such interest
being held otherwise than in or through such an account;
provided that this Section 305(b)(iv) shall not prohibit any
transfer or exchange of such an interest in accordance with
Section 305(b)(iii) above.
(v) EXCHANGE SECURITIES. Nothing in this Indenture shall
prohibit the exchange by any holder of a beneficial interest
in a Global Security for a beneficial interest in an Exchange
Security if such exchange is made pursuant to, and in
accordance with the terms of, the Registration Rights
Agreement.
(2) EXCHANGES. In the event that a Restricted Global Security
or any portion thereof is exchanged for Securities other than
Global Securities, such other Securities may in turn be
exchanged (on transfer or otherwise) for Securities that are
not Global Securities or for beneficial interests in a Global
Security (if any is then outstanding) only in accordance with
such procedures, which shall be substantially consistent with
the provisions of clause (1) above and any Applicable
Procedures, as may be from time to time adopted by the Company
and the Trustee.
(c) Each Restricted Security and Global Security issued
hereunder shall, upon issuance, bear the legends required by Section 202 to be
applied to such a Security and such required legends shall not be removed from
such Security except as provided in the next sentence or paragraph (d) of this
Section 305. The legend required for
- 38 -
a Restricted Security may be removed from a Security if there is delivered to
the Company such satisfactory evidence, which may include an opinion of
independent counsel, as may be reasonably required by the Company that neither
such legend nor the restrictions on transfer set forth therein are required to
ensure that transfers of such Security will not violate the registration
requirements of the Securities Act. Upon provision of such satisfactory
evidence, the Trustee, at the written direction of the Company, shall
authenticate and deliver in exchange for such Security another Security or
Securities having an equal aggregate principal amount that does not bear such
legend. If such a legend required for a Restricted Security has been removed
from a Security as provided above, no other Security issued in exchange for all
or any part of such Security shall bear such legend, unless the Company has
reasonable cause to believe that such other Security is a "restricted security"
within the meaning of Rule 144 and instructs the Trustee in writing to cause a
legend to appear thereon.
(d) The provisions of clauses (1), (2), (3) and (4) below
shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of a Depositary for such Global
Security or a nominee thereof and delivered to such depositary or a
nominee thereof, and each such Global Security shall constitute a
single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture or
the Securities, no Global Security may be exchanged in whole or in part
for Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person other
than a Depositary for such Global Security or a nominee thereof unless
(A) the Company notifies the Trustee in writing that DTC, Euroclear or
Clearstream is no longer willing or able to act as a depositary or
clearing system for such Global Security or DTC ceases to be registered
as a clearing agency trust which is registered as such under the
Exchange Act, (B) the Depositary is closed for business for a
continuous period of 14 days (other than by reason of statutory or
other holidays), (C) the Company, at its option, notifies the Trustee
in writing that it elects to cause the issuance of certificated
Securities or (D) there shall have occurred and be continuing an Event
of Default with respect to such Global Security. Any Global Security
exchanged pursuant to clause (A) or (B) above shall be so exchanged in
whole and not in part, and any Global Security exchanged pursuant to
clause (C) or (D) above may be exchanged in whole or from time to time
in part as directed by the Company or the Trustee. Any Security issued
in exchange for a Global Security or any portion thereof shall be a
Global Security, provided that any such Security so issued that is
registered in the name of a Person other than DTC or a nominee thereof
shall not be a Global Security.
(3) Securities issued in exchange for a Global Security or any
portion thereof pursuant to clause (2) above shall be issued in
definitive, fully registered form, without interest coupons, shall have
an aggregate principal amount equal to that of such Global Security or
portion thereof to be so exchanged, shall be
- 39 -
registered in such names and be in such authorized denominations as the
Depositary shall designate and shall bear any legends required
hereunder. Any Global Security to be exchanged in whole shall be
surrendered by the Depositary to the Trustee, as Security Registrar.
With regard to any Global Security to be exchanged in part, either such
Global Security shall be so surrendered for exchange or, if the Trustee
is acting as custodian for the Depositary or its nominee with respect
to such Global Security, the principal amount thereof shall be reduced,
by an amount equal to the portion thereof to be so exchanged, by means
of an appropriate adjustment made on the records of the Trustee. Upon
any such surrender or adjustment, the Trustee shall authenticate and
make available for delivery the Security issuable on such exchange to
or upon the written order of the Depositary or an authorized
representative thereof.
(4) In the event of the occurrence of any of the events
specified in clause (2) above, the Company will promptly make available
to the Trustee a reasonable supply of certificated Securities in
definitive, fully registered form, without interest coupons.
(5) No Agent Members nor any other Persons on whose behalf
Agent Members may act shall have any rights under this Indenture with
respect to any Global Security (including DTC and account holders and
participants therein unless DTC, or its nominee is the registered
holder of such Global Security), or under any Global Security, and the
registered holder thereof may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner and
holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other
authorization furnished by DTC or a nominee thereof, as the case may
be, or impair, as between DTC, its Agent Members and any other person
on whose behalf an Agent Member may act, the operation of customary
practices of such Persons governing the exercise of the rights of a
holder of any Security.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the
Company shall execute a new Security, the Subsidiary Guarantors shall execute
the Subsidiary Guarantees endorsed thereon, and the Trustee shall authenticate
and deliver in exchange therefor, a new Security of like tenor and principal
amount having endorsed thereon the Subsidiary Guarantees executed by the
Subsidiary Guarantors 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
- 40 -
the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security, a new Security of like tenor and principal amount having
endorsed thereon the Subsidiary Guarantees executed by the Subsidiary Guarantors
and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security, and the Subsidiary Guarantees endorsed
thereon, shall constitute an original additional contractual obligation of the
Company and the respective Subsidiary Guarantors, whether or not the destroyed,
lost or stolen Security and the Subsidiary Guarantees endorsed thereon 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
duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
----------------------------------------------
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. Liquidated Damages, if any, shall be paid in the same manner in
accordance with the terms of the Registration Rights Agreement.
Any interest (and Liquidated Damages, if any) on any Security
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 (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
- 41 -
Defaulted Interest proposed to be paid on each Security and the date of
the proposed payment, 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 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 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 by the
Trustee from the funds deposited by the Company as herein above
provided to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
---------------------
Prior to due presentment of a Security for registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors 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 and (subject to Section 307)
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Subsidiary Guarantors,
the Trustee nor any agent of the Company, the Subsidiary Guarantors or the
Trustee shall be affected by notice to the contrary.
- 42 -
SECTION 309. CANCELLATION.
------------
All Securities surrendered for payment, redemption,
registration of transfer or exchange 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 held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. COMPUTATION OF INTEREST.
-----------------------
Interest on the Securities shall be computed on the basis of
the actual number of days elapsed divided by 360.
SECTION 311. CUSIP/COMMON CODE/ISIN NUMBER.
-----------------------------
The Company in issuing the Securities may use "CUSIP", "common
code" and/or "ISIN" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP", "common code" and/or "ISIN" numbers in notices of redemption
as a convenience to Holders; PROVIDED that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP", "common code" or "ISIN" numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
---------------------------------------
This Indenture shall, upon request by the Company, cease to be
of further effect (except as to any surviving rights of registration of transfer
or exchange of Securities herein expressly provided for), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
- 43 -
(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 306 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 1003) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable,
(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 or a Subsidiary Guarantor, in the case of (i),
(ii) or (iii) above, has deposited or caused to be deposited
with the Trustee as trust funds in trust for such purpose an
amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and interest to the date of
such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company or a Subsidiary Guarantor has paid or
caused to be paid all other sums payable hereunder by the
Company and the Subsidiary Guarantors; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any Authenticating Agent under Section
614, the rights of the Trustee under Section 603 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
- 44 -
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
--------------------------
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities,
this Indenture and the Registration Rights Agreement, 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 interest (and Liquidated Damages) for whose payment such money
has been deposited with the Trustee.
ARTICLE FIVE
Default and Remedies
SECTION 501. EVENTS OF DEFAULT.
-----------------
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of the principal of any Security
at its Maturity; or
(2) default in the payment of any interest or Liquidated
Damages upon any Security when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company or the Subsidiary Guarantors in this Indenture
or the Registration Rights Agreement (other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(4) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Subsidiary Guarantor in an involuntary case or proceeding under any
applicable United States Federal
- 45 -
or State or other applicable bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any
Subsidiary Guarantor bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Subsidiary Guarantor
under any applicable Federal or State or other applicable law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Subsidiary
Guarantor or of any substantial part of the property of the Company or
any Subsidiary Guarantor, or ordering the winding up or liquidation of
the affairs of the Company or any Subsidiary Guarantor, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(5) the commencement by the Company or any Subsidiary
Guarantor of a voluntary case or proceeding under any applicable United
States Federal or State or other applicable bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by the
Company or any Subsidiary Guarantor to the entry of a decree or order
for relief in respect of the Company or any Subsidiary Guarantor in an
involuntary case or proceeding under any applicable Federal or State or
other applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against the Company or any Subsidiary Guarantor, or the
filing by the Company or any Subsidiary Guarantor of a petition or
answer or consent seeking reorganization or relief under any applicable
Federal or State or other applicable law, or the consent by the Company
or any Subsidiary Guarantor to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or any Subsidiary Guarantor or of any substantial part of the
property of the Company or Subsidiary Guarantor, or the making by the
Company or any Subsidiary Guarantor of an assignment for the benefit of
creditors, or the admission by the Company or any Subsidiary Guarantor
in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company or any Subsidiary
Guarantor in furtherance of any such action.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
--------------------------------------------------
If an Event of Default (other than an Event of Default
specified in Sections 501(4) or (5)) occurs and is continuing, then and in every
such case the Trustee or any Holders of not less than 25% in principal amount of
the Outstanding Securities may declare the principal of all the Securities to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal and
any accrued interest (and Liquidated Damages, if any) shall become immediately
due and payable. If an Event of Default specified in Section 501(4) or (5)
occurs, the principal of and any accrued interest (and Liquidated Damages, if
any) on the Securities then Outstanding shall become immediately due and
- 46 -
payable without any declaration or other Act on the part of the Trustee or any
Holder.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company or any Subsidiary Guarantor has paid or
deposited with the Trustee a sum sufficient to pay, without
duplication,
(A) all overdue interest and Liquidated Damages on
all Securities,
(B) the principal of any Securities which have become
due otherwise than by such declaration of acceleration and, to
the extent that payment of such interest is lawful, interest
thereon at the rate provided by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest and Liquidated Damages
at the rate provided by the Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest or Liquidated Damages, as the case may be,
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 any
Security at the Maturity thereof,
- 47 -
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 interest (and Liquidated Damages, if any) , and, to
the extent that payment of such interest or Liquidated Damages shall be legally
enforceable, interest on any overdue principal and on any overdue interest, at
the rate provided by the 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 and all amounts due to the Trustee under
Section 607.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
--------------------------------
In case of any judicial proceeding relative to the Company,
any Subsidiary Guarantor or any other obligor upon the Securities, or the
property of the Company or its creditors or of any Subsidiary Guarantor and its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
PROVIDED, HOWEVER, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and may be a member of
the creditors' committee.
- 48 -
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR
SUBSIDIARY GUARANTEES.
---------------------------------------------------------------
All rights of action and claims under this Indenture or the
Securities or any Subsidiary Guarantee may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
------------------------------
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection,
including all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses and disbursements of the Trustee,
its agents and counsel, and all other amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest (and Liquidated Damages, if any) on the
Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal and interest (and Liquidated Damages, if any), respectively.
SECTION 507. LIMITATION ON SUITS.
-------------------
No Holder of any Security 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;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
- 49 -
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to it 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;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, any Security or any Subsidiary
Guarantee, except in the manner herein provided and for the equal and ratable
benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND INTEREST.
----------------------------------------------------------------
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and (subject to Section
307) interest on such Security on the respective Stated 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. The Holder of any Security
shall have right, which is absolute and unconditional, to receive payment of
Liquidated Damages in accordance with the terms of the Registration Rights
Agreement.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Subsidiary Guarantors, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
------------------------------
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of
- 50 -
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. CONTROL BY HOLDERS.
------------------
Subject to Article Six, the Holders of a majority in principal
amount of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or any Subsidiary Guarantee,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction,
and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the
Holders of Securities not joining therein, it being understood
that the Trustee shall have no duty to ascertain whether or
not such actions or forbearances are unduly prejudicial to
such holders.
SECTION 513. WAIVER OF PAST DEFAULTS.
-----------------------
The Holders of not less than a majority in principal amount of
the Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of or interest on any
Security, or
- 51 -
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture, and the Company, any Subsidiary Guarantor, the
Trustee and any Holder shall be restored to their former position and rights
hereunder, but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
---------------------
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; PROVIDED that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or any Subsidiary Guarantor.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
--------------------------------
Each of the Company and the Subsidiary Guarantors covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and each of the Company and the Subsidiary Guarantors (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
--------------------------------------------------
Except during the continuance of an Event of Default, (1) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and (2) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
- 52 -
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or indemnity
satisfactory to it against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
601.
SECTION 602. NOTICE OF DEFAULTS.
------------------
The Trustee shall give the Holders notice of any default
actually known to a Responsible Officer of the Trustee hereunder as and to the
extent provided by the Trust Indenture Act; PROVIDED, HOWEVER, that in the case
of any default of the character specified in Section 501(3), no such notice to
Holders shall be given until at least 90 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any 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;
- 53 -
(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(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 satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees 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;
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights of powers conferred upon
it by this Indenture or any action taken, suffered or omitted by it
pursuant to a direction of the Company or any Holders pursuant to the
provisions of this Indenture;
(i) 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 any of its rights
or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; and
(j) the Trustee shall not be deemed to have knowledge or
notice of any Default or Event of Default except (i) any Event of
Default occurring pursuant to Clauses (1) or (2) of the definition of
"Event of Default" or (ii) any Default or Event of Default of which
Trustee shall have received written notification in accordance with the
terms of this Indenture or obtained actual knowledge.
- 00 -
XXXXXXX 000. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
------------------------------------------------------
The recitals contained herein and in the Securities and the
Subsidiary Guarantees, except the Trustee's certificates of authentication,
shall be taken as the statements of the Company or the Subsidiary Guarantors, as
the case may be, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or the Subsidiary Guarantees
endorsed thereon. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or any Subsidiary
Guarantor, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company and any Subsidiary Guarantor with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
SECTION 606. MONEY HELD IN TRUST.
-------------------
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company or any Subsidiary Guarantor, as the
case may be.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
------------------------------
The Company and each Subsidiary Guarantor jointly and
severally unconditionally agree
(1) to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services rendered
by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or willful misconduct; and
(3) to indemnify the Trustee, its officers, directors, agents
and
- 55 -
employees for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of enforcing this
Indenture against the Company and the Subsidiary Guarantors and
defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder. The Company and the Subsidiary Guarantors shall
defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company and the Subsidiary
Guarantors shall pay the reasonable fees and expenses of such counsel.
This Section 607 shall survive the termination of the Indenture or the
earlier resignation or removal of the Trustee.
To secure the Company's and each Subsidiary Guarantor's payment obligations in
this Section 607, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, in its capacity as Trustee,
except money or property held in trust to pay principal of, and interest on,
particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 501(4) or (5) of this Indenture occurs,
such expenses (including the charges and expenses of its agent and counsel) are
intended to constitute expenses of administration under Bankruptcy Law.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus (or the parent holding company of which has a
combined capital and surplus) of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person (or parent holding
company thereof) shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
- 56 -
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged 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, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(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, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and
- 57 -
accepted appointment in the manner hereinafter provided, 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 appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
--------------------------------------
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company, the Subsidiary Guarantors 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 request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder. Upon
request of any such successor Trustee, the Company and the Subsidiary Guarantors
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.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
-----------------------------------------------------------
Any corporation, association or other entity into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation, association or other entity 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, IPSO FACTO 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 notwithstanding anything herein to the contrary. In
case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
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SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY AND SUBSIDIARY
GUARANTORS.
----------------------------------------------------------------
If and when the Trustee shall be or become a creditor of the
Company, any Subsidiary Guarantor or any other obligor upon the Securities or
any Subsidiary Guarantor, the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Company, such
Subsidiary Guarantor or any such other obligor.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange registration of
transfer, partial redemption or pursuant to Section 306, and Securities so
authenticated, and the Subsidiary Guarantees endorsed thereon, 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, except for authentication of original
issues or lost, stolen or mutilated securities. 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, or authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to 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
- 59 -
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 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 Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the
within-mentioned Indenture.
HSBC Bank USA,
As Trustee
By___________________________,
As Authenticating Agent
By___________________________
Authorized Signature
- 60 -
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the
Trustee:
(a) annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such Regular Record Date,
and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities and
the corresponding rights and duties of the Trustee, shall be provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company, the Subsidiary Guarantors and the Trustee that
neither the Company, the Subsidiary Guarantors nor the Trustee nor any agent of
any of them shall be held accountable by reason of any disclosure of information
as to the names and addresses of Holders made pursuant to the Trust Indenture
Act.
SECTION 703. REPORTS BY TRUSTEE.
------------------
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
- 61 -
(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 the Securities are listed, with the Commission, with the Company and with
the Subsidiary Guarantors. The Company will notify the Trustee when the
Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
------------------
The Company and each of the Subsidiary Guarantors shall file
with the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports
required to be filed with Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. COMPANY AND SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC. ONLY ON
CERTAIN TERMS.
----------------------------------------------------------------
Neither the Company nor a Subsidiary Guarantor shall
consolidate with or merge into any other Person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person and neither the
Company nor a Subsidiary Guarantor shall permit any Person to consolidate with
or merge into the Company or such Subsidiary Guarantor or convey, transfer or
lease its properties and assets substantially as an entirety to the Company or
such Subsidiary Guarantor, unless:
(1) in case the Company or such Subsidiary Guarantor shall
consolidate with or merge into another Person or convey, transfer or
lease its properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into which the
Company or such Subsidiary Guarantor is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company or such Subsidiary Guarantor substantially as an
entirety shall be a corporation, limited liability company, partnership
or trust, shall be organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and interest
on all the Securities or the obligation under the Subsidiary Guarantee,
as the case may be, and the performance or observance of every covenant
of this Indenture and the Registration Rights Agreement on the part of
the Company or such Subsidiary Guarantor, as the case may be, to be
- 62 -
performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Company
or any Principal Subsidiary would become subject to a mortgage, pledge,
lien, security interest or other encumbrance which would not be
permitted by this Indenture, the Company or such successor Person, as
the case may be, on or prior to the effective date of such
consolidation, merger or conveyance, shall take such steps as shall be
necessary effectively to secure the Securities equally and ratably with
(or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
---------------------
(a) Upon any consolidation of the Company with, or merger of
the Company into, any other Person or any transfer, conveyance, sale, lease or
other disposition of the properties and assets of the Company substantially as
an entirety in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture and the
Registration Rights Agreement with the same effect as if such successor Person
had been named as the Company herein and therein, and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture, the Registration Rights Agreement and the
Securities.
(b) Upon any consolidation of a Subsidiary Guarantor with, or
merger of such Subsidiary Guarantor into, any other Person or any transfer,
conveyance, sale, lease or other disposition of all or substantially all of the
properties and assets of such Subsidiary Guarantor in accordance with Section
801, the Successor Subsidiary Guarantor shall succeed to, and be substituted
for, and may exercise every right and power of, such Subsidiary Guarantor under
this Indenture and the Registration Rights Agreement with the same effect as if
such successor Person had been named as a Subsidiary Guarantor herein and
therein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Registration Rights Agreement and its Subsidiary Guarantee.
- 63 -
ARTICLE NINE
Supplemental Indentures
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
--------------------------------------------------
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, the Subsidiary Guarantors, when authorized by
their respective Board Resolutions, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company or any Subsidiary Guarantor and the assumption by any such
successor of the covenants of the Company or any Subsidiary Guarantor
herein and in the Securities or Subsidiary Guarantee, as the case may
be; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to secure the Securities pursuant to the requirements of
Section 1007 or otherwise; or
(4) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, PROVIDED such action pursuant to
this Clause (4) shall not adversely affect the interests of the Holders
in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company, the Subsidiary Guarantors and the Trustee, the Company, when
authorized by a Board Resolution, the Subsidiary Guarantors, when authorized by
their respective Board Resolutions, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this Indenture;
PROVIDED, HOWEVER, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment
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of interest on, any Security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable thereon or the
amount payable upon redemption thereof, or change the place of payment
where, or the coin or currency in which, any Security or any premium or
the interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or permit the Company to redeem the Securities if, prior to such
action, the Company is not permitted to do so, or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the percentage in principal
amount of the Outstanding Securities required for the adoption of a
resolution or the quorum required at any meeting of Holders at which a
resolution is adopted, or
(3) modify any of the provisions of this Section, Section 513
or Section 1010, 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, or
(4) impair the unconditional nature of the Subsidiary
Guarantees, or
(5) modify the obligation of the Company to deliver
information as set forth in Section 1011.
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
------------------------------------
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and 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 and that
such supplemental indenture is the legal, valid and binding obligation of the
Company and each of the Subsidiary Guarantors enforceable against them in
accordance with its terms, subject to customary exceptions, and complies with
the provisions hereof (including Section 905). 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. No
supplemental indenture shall modify this Section 903 without the prior consent
of the Trustee.
- 65 -
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
---------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. Promptly after execution by the Company of any
supplemental indenture, the Company shall transmit to the Holders a notice
setting forth the substance of the supplemental indenture.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
------------------------------------
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
--------------------------------------------------
Securities 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 and the Subsidiary
Guarantors shall so determine, new Securities so modified as to conform, in the
opinion of the Company and the Subsidiary Guarantors, to any such supplemental
indenture may be prepared and executed by the Company, the Subsidiary Guarantees
may be endorsed thereon and such new Securities and authenticated and delivered
by the Trustee in exchange for Outstanding Securities.
ARTICLE TEN
Covenants
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST.
---------------------------------
The Company will duly and punctually pay the principal of and
interest (and Liquidated Damages) on the Securities in accordance with the terms
of the Securities, the Registration Rights Agreement and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
-------------------------------
The Company will maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange
- 66 -
and where notices and demands to or upon the Company or any Subsidiary Guarantor
in respect of the Securities, any Subsidiary Guarantee endorsed thereon and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company and each Subsidiary
Guarantor hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside the Borough of Manhattan, The City of
New York) where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
-----------------------------------------------
If the Company or any Subsidiary Guarantor shall at any time
act as its own Paying Agent, it will, on or before each due date of the
principal of, interest or Liquidated Damages on any of the Securities, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal, interest or Liquidated Damages 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, it
will, prior to each due date of the principal of, interest or Liquidated Damages
on any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal, interest or Liquidated Damages so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, interest or
Liquidated Damages, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee 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, interest or Liquidated Damages on Securities 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;
- 67 -
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal, interest or Liquidated Damages; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, interest
or Liquidated Damages on any Security and remaining unclaimed for two years
after such principal, interest or Liquidated Damages 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 or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, New York (which is expected to be the WALL
STREET JOURNAL), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. EXISTENCE.
---------
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect the
existence, rights (charter and statutory) and franchises of the Company and each
Subsidiary Guarantor; PROVIDED, HOWEVER, that the Company shall not be required
to preserve any such right or franchise if the Board of Directors in good faith
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
- 68 -
SECTION 1005. MAINTENANCE OF PROPERTIES.
-------------------------
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary of the Company to be
maintained and kept in good condition, repair and working order 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 if such
discontinuance is, as determined by the Board of Directors in good faith,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1006. 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 taxes, assessments
and governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Company or
any of its Subsidiaries; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1007. LIMITATION ON LIENS.
-------------------
The Company will not, and will not permit any Principal
Subsidiary to, create or suffer to exist any Lien to secure any Indebtedness of
the Company or any Subsidiary upon any Principal Property, or upon shares of
capital stock or evidences of Indebtedness issued by any Principal Subsidiary
and owned by the Company or any Principal Subsidiary, whether owned at the date
of this Indenture or thereafter acquired, without making, or causing such
Principal Subsidiary to make, effective provision to secure all of the
Securities from time to time Outstanding by such Lien, equally and ratably with
any and all other Indebtedness thereby secured, so long as such Indebtedness
shall be so secured.
The foregoing restrictions shall not apply to Indebtedness
secured by Liens existing on the date of this Indenture or to any of the
following:
(1) Liens on any property existing at the time of the
acquisition thereof;
(2) Liens on property of a corporation existing at the time
such
- 69 -
corporation is merged into, consolidated with or acquired by the
Company or a Principal Subsidiary or at the time of a sale, lease or
other disposition of the properties of such corporation (or a division
thereof) as an entirety or substantially as an entirety to the Company
or a Principal Subsidiary, PROVIDED that such Lien as a result of such
merger, consolidation, acquisition, sale, lease or other disposition is
not extended to property owned by the Company or such Principal
Subsidiary immediately prior thereto;
(3) Liens on property of a corporation existing at the time
such corporation becomes a Principal Subsidiary;
(4) Liens securing Indebtedness of a Principal Subsidiary to
the Company or to another Principal Subsidiary;
(5) Liens to secure all or part of the cost of acquisition,
construction, development or improvement of the underlying property, or
to secure Indebtedness incurred to provide funds for any such purpose
(including purchase money security interest or money mortgage on real
or personal property), PROVIDED that the commitment of the creditor to
extend the credit secured by any such Liens shall have been obtained
not later than twenty-four months after the later of (a) the completion
of the acquisition, construction, development or improvement of such
property or (b) the placing in operation of such property or of such
property as so construed, developed or improved;
(6) Liens on any property created, assumed or otherwise
brought into existence in contemplation of the sale or other
disposition of the underlying property, whether directly or indirectly,
by way of share disposition or otherwise; PROVIDED that the Company
must have disposed of such property within 180 days from the creation
of such Liens and any Indebtedness secured by such Liens shall be
without recourse to the Company or any Subsidiary;
(7) Liens in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or
political subdivision thereof, to secure partial, progress, advance or
other payments;
(8) Liens to secure Indebtedness on any Principal Property of
joint ventures which constitute Principal Subsidiaries in which the
Company or a Principal Subsidiary has an interest, to the extent such
Liens are on property or assets of, or equity interests in, such joint
ventures; and
(9) any extension, renewal or replacement or refunding of any
Lien existing on the date of the Indenture or referred to in clauses
(1) to (3) or (5); PROVIDED, HOWEVER, that the principal amount of
Indebtedness secured thereby and not otherwise authorized by clauses
(1) to (3) or (5), shall not exceed the principal amount of
Indebtedness, plus any premium or fee payable in connection with any
such extension, renewal, replacement, or refunding, so secured at the
time such extension, renewal, replacement or refunding.
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Notwithstanding the foregoing, the Company and its Principal
Subsidiaries may create or suffer to exist Liens which would otherwise be
prohibited by this Section 1007 securing Indebtedness in an aggregate amount
which, together with all outstanding Attributable Value of all Sale and
Lease-Back Transactions permitted by the last paragraph of Section 1008 and all
Indebtedness secured by Liens permitted pursuant to this paragraph, does not
exceed 10% of Consolidated Net Tangible Assets of the Company.
SECTION 1008. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
----------------------------------------------
The Company will not, nor will it permit any Principal
Subsidiary to, enter into any Sale and Lease-Back Transaction with respect to
any Principal Property (except for (x) a transaction providing for a lease for a
term, including any renewal thereof, of not more than three years, by the end of
which term it is intended that the use of such Principal Property by the lessee
will be discontinued, (y) a transaction between the Company and a Principal
Subsidiary or between Principal Subsidiaries, and (z) a transaction between the
Company or a Principal Subsidiary and a joint venture in which the Company or a
Principal Subsidiary has an interest), unless either (i) the Company or such
Principal Subsidiary would be entitled pursuant to Section 1007 to issue, assume
or guarantee Indebtedness secured by a Lien on such Principal Property without
equally and ratably securing the Securities or (ii) the Company or such
Principal Subsidiary shall apply or cause to be applied within 180 days after
the effective date of such Sale and Lease-Back Transaction, an amount equal to
the Net Available Proceeds therefrom to (A) the acquisition of one or more
Principal Properties or (B) to the retirement of Securities or the repayment of
other Indebtedness of the Company or a Principal Subsidiary (other than such
Indebtedness owned by the Company or a Principal Subsidiary) which, in the case
of such Indebtedness of the Company, is not subordinate and junior in right of
payment to the prior payment of the Securities.
Notwithstanding the foregoing, the Company or any Principal
Subsidiary may enter into a Sale and Lease-Back Transaction which would
otherwise be prohibited by this Section 1008 to the extent that the Attributable
Value thereof, together with all indebtedness secured by Liens permitted
pursuant to the last paragraph of Section 1007 and the Attributable Value of all
other Sale and Lease-Back Transactions permitted by this paragraph, does not
exceed 10% of Consolidated Net Tangible Assets of the Company.
SECTION 1009. STATEMENT BY OFFICERS AS TO DEFAULT; COMPLIANCE CERTIFICATES.
------------------------------------------------------------
(a) The Company and the Subsidiary Guarantors will deliver to
the Trustee, within 120 days after the end of their respective fiscal years,
ending after the date hereof an Officers' Certificate, stating whether or not to
the best knowledge of the signers thereof the Company or such Subsidiary
Guarantor, as the case may be, has fulfilled all its obligations hereunder or is
in default in the performance and observance of any of the terms, provisions and
conditions of Section 801 or Sections 1004 to 1008,
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inclusive, and if the Company or any Subsidiary Guarantor, as the case may be,
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
(b) The Company and each Subsidiary Guarantor shall deliver to
the Trustee, as soon as possible and in any event within five days after the
Company or such Subsidiary Guarantor becomes aware or should reasonably become
aware of the occurrence of an Event of Default or a Default, an Officers'
Certificate setting forth the details of such Event of Default or default, and
the action which the Company or such Subsidiary Guarantor proposes to take with
respect thereto.
SECTION 1010. WAIVER OF CERTAIN COVENANTS.
---------------------------
The Company or any Subsidiary Guarantor may be excused in any
particular instance for complying with any covenant or condition set forth in
Section 801, 802 and Sections 1004 to 1008, if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and such Subsidiary Guarantor
and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
SECTION 1011. AVAILABLE INFORMATION.
---------------------
Until such time as all Outstanding Securities are freely
transferable without restriction under the Securities Act, the Company (i) will
use its best efforts to be subject to the reporting requirements of Section 13
or Section 15(d) of the Exchange Act and to file in a timely manner all reports
and other documents required to be filed pursuant thereto or in connection
therewith and (ii) will take, and will cause the Subsidiary Guarantors to take,
all actions necessary to permit resales of the Securities and the Subsidiary
Guarantees endorsed thereon pursuant to Rule 144A, including furnishing to any
Holder (or of a beneficial interest in a Security), or to any prospective
purchaser designated by such a Holder or beneficial owner, upon request of such
Holder or beneficial owner, financial and other information required to be
delivered under paragraph (d)(4) of Rule 144A.
SECTION 1012. ACQUISITION OF SECURITIES.
-------------------------
The Company shall not, and shall cause its Affiliates not to,
resell or otherwise dispose of any Securities acquired by them, in the open
market or otherwise, and shall, and shall cause its Affiliates to, surrender all
such Securities acquired to the Trustee for cancellation.
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ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. APPLICABILITY OF ARTICLE.
------------------------
Securities which are redeemable before their Stated Maturity
shall be redeemable in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or in another manner specified as contemplated
by Section 301 for such Securities. In case of any redemption at the election of
the Company, the Company shall, at least 45 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee in its sole and absolute discretion), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
-------------------------------------------------
If less than all the Securities are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security; PROVIDED that the unredeemed
portion of the principal amount of any Security shall be in an authorized
denomination (which shall not be less than the minimum authorized denomination)
for such Security.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption as aforesaid and, in the case of any
Securities selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
--------------------
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
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All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of
partial redemption of any such Securities, the
principal amounts) of the particular Securities to be
redeemed;
(4) that on the Redemption Date the Redemption Price,
together with accrued interest and Liquidated
Damages, if any, to the Redemption Date, will become
due and payable upon each such Security to be
redeemed and, if applicable, that interest and
Liquidated Damages thereon will cease to accrue on
and after said date;
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price;
(6) that in the case that a Security is only redeemed in
part, 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 in an aggregate amount equal to the
unredeemed portion of the Security;
(7) the aggregate principal amount of Securities being
redeemed;
(8) the CUSIP number of such Securities, if any, or any
other numbers used by the Depositary to identify such
securities; and
(9) such other matters as the Company shall deem
desirable or appropriate.
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. Any such
notice of redemption shall be irrevocable.
On or prior to any Redemption Date, the Company shall deposit,
with respect to the Securities of any series called for redemption pursuant to
this Section 1104, with the Trustee or with a Paying Agent an amount of money in
the applicable currency sufficient to pay the Redemption Price of, any
Liquidated Damages on and any accrued interest on, all such Securities or
portion thereof which are to be redeemed on that date.
- 74 -
SECTION 1105. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities or portions thereof 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 and Liquidated Damages, if any) such
Securities or portions thereof, shall cease to bear interest and Liquidated
Damages. Upon surrender of any such Security for redemption in accordance with
said notice, such Security or portion thereof shall be paid by the Company at
the Redemption Price, together with accrued interest and Liquidated Damages, if
any, to the Redemption Date; PROVIDED, HOWEVER, installments of interest whose
Stated Maturity is on or prior to the Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Regular Record Dates according to
their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security or, if no rate is prescribed therefor in the Security, at the rate of
interest, if any, borne by such Security.
SECTION 1106. SECURITIES REDEEMED IN PART.
---------------------------
Any Security which is to be redeemed only in part shall be
surrendered at the office or agency designated for that purpose in Section 1002
(with, if the Company, the Guarantor or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company, the
Guarantor 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 (and with Subsidiary Guarantees executed by
the Subsidiary Guarantors endorsed thereon), 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 with
the Subsidiary Guarantees of the Subsidiary Guarantors endorsed thereon.
ARTICLE TWELVE
Subsidiary Guarantee
SECTION 1201. SUBSIDIARY GUARANTEE.
--------------------
Each Subsidiary Guarantor hereby absolutely and
unconditionally guarantees, jointly and severally with each other Subsidiary
Guarantor, to each Holder of a Security authenticated and delivered by the
Trustee pursuant to this Indenture and to the Trustee and its successors and
assigns, regardless of the validity and enforceability of
- 75 -
the Indenture, the Securities or the obligations of the Company under the
Indenture, the Securities or the Registration Rights Agreement, that:
(i) the principal of, and interest (and Liquidated Damages, if
any) on the Securities will be promptly paid in full when due, whether
at maturity, by acceleration or otherwise, and interest (and Liquidated
Damages, if any) on the overdue principal of, and interest on the
Securities, to the extent lawful, and all other payment obligations of
the Company to the Holders or the Trustee thereunder or under this
Indenture will be promptly paid in full, all in accordance with the
terms thereof, of the Indenture and the Registration Rights Agreement;
and
(ii) in case of any extension of time for payment or renewal
of any Securities, that the same will be promptly paid in full when due
in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
Notwithstanding the foregoing, in the event that this
Subsidiary Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the liability
of each Subsidiary Guarantor under the Indenture and its Subsidiary Guarantee
shall be reduced to the maximum amount permissible under such fraudulent
conveyance or similar law.
If the Company shall default in the due and punctual payment
of any obligation under this Indenture or the Registration Rights Agreement
including under the Securities, without the necessity of action by the Trustee
or any Holder of Securities, the Subsidiary Guarantor will promptly and fully
make such payments in the same manner as required to have been made by the
Company.
To the extent permitted by law, the obligations of each
Subsidiary Guarantor hereunder shall be continuing, absolute and unconditional,
and shall not be impaired, modified, released or limited by an occurrence or
condition whatsoever, including, without limitation, (i) any compromise,
settlement, release, waiver, renewal, extension, indulgence or modification of,
or any change in, any of the obligations and liabilities of the Company
contained in the Securities, this Indenture or the Registration Rights Agreement
or of any other Subsidiary Guarantor contained in the Indenture, (ii) any
impairment, modification, release or limitation of the liability of the Company
or of any other Subsidiary Guarantor in bankruptcy, or any remedy for the
enforcement thereof, resulting from the operation of any present or future
provision of any applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws or from the decision of any court, (iii)
the assertion or exercise by the Company, any other Subsidiary Guarantor, or the
Trustee of any rights or remedies under the Securities, this Indenture or the
Registration Rights Agreement or their delay in or failure to assert or exercise
any such rights or remedies, (iv) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the
assets, marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar
- 76 -
proceeding affecting, the Company or any other Subsidiary Guarantor or any of
their assets, or the disaffirmance of this Indenture, the Securities or the
Registration Rights Agreement in any such proceeding, (v) the release or
discharge of the Company or any other Subsidiary Guarantor from the performance
or observance of any agreement, covenant, term of condition contained in any of
such instruments by operation of law, (vi) the unenforceability of the
Securities, this Indenture or the Registration Rights Agreement or (vii) any
other circumstance which might otherwise constitute a legal or equitable
discharge of a surety or guarantor.
Each Subsidiary Guarantor hereby (i) waives diligence,
presentment, demand for payment, filing of claims with a court in the event of
the merger or bankruptcy of the Company, any right to require a proceeding first
against the Company or to realize on any collateral, protest, notice and all
demands whatsoever with respect to the payment obligations of the Company under
this Indenture, (ii) agrees that its obligations hereunder constitute a
guarantee of payment and not of collection and are not in any way conditional or
contingent upon any attempt to collect from or enforce against the Company or
upon any other condition or contingency, (iii) acknowledges that any agreement,
instrument or document evidencing the obligations of the Company under this
Indenture may be transferred and that the benefit of its obligations hereunder
shall extend to each holder of any agreement, instrument or document evidencing
such obligations without notice to them and (iv) covenants that its Subsidiary
Guarantee will not be discharged except by complete performance of the payment
obligations under the Securities, this Indenture or the Registration Rights
Agreement.
Each Subsidiary Guarantor further agrees that if at any time
all or any part of any payment therefore applied by any person to any payment
obligation is, or must be, rescinded or returned for any reason whatsoever,
including, without limitation, the insolvency, bankruptcy or reorganization of
the Company or any other Subsidiary Guarantor, such obligation shall for the
purposes of the Subsidiary Guarantee, to the extent that such payment is or must
be rescinded or returned, be deemed to have continued in existence
notwithstanding such application, and the Subsidiary Guarantee made pursuant to
this Indenture shall continue to be effective or be reinstated, as the case may
be, as to such payment obligation as though such application had not been made.
Each Subsidiary Guarantor shall, to the extent of any payment
made by it pursuant to this Indenture, be subrogated to all rights of the
Trustee and the Holders of the Securities as to all payments and damages payable
by the Company with respect to which payments have been made by such Subsidiary
Guarantor, but, so long as any payment obligation remains outstanding, such
right of subrogation on the part of such Subsidiary Guarantor shall be subject
to the payment in full or discharge of all such payment obligations.
Each of the Subsidiary Guarantors shall have the right to seek
contribution from any other non-paying Subsidiary Guarantor so long as the
exercise of such right does not impair the rights of the Holders or the Trustee
under the Subsidiary Guarantees made pursuant to this Indenture.
- 77 -
SECTION 1202. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES.
-----------------------------------------------
The Subsidiary Guarantees to be endorsed on the Securities
shall include the terms of the Subsidiary Guarantee set forth in Section 1201
and any other terms that may be set forth in the form established pursuant to
Section 206. Each of the Subsidiary Guarantors hereby agrees to execute its
Subsidiary Guarantee, in a form established pursuant to Section 206, to be
endorsed on each Security authenticated and delivered by the Trustee.
The Subsidiary Guarantee shall be executed on behalf of each
respective Subsidiary Guarantor by any of such Subsidiary Guarantor's Chairman
of the Board, Vice Chairman of the Board, Chief Executive Officer, President,
one of its Vice Presidents, or its Secretary. The signature of any or all of
these persons on the Subsidiary Guarantee may be manual or facsimile.
A Subsidiary Guarantee bearing the manual or facsimile
signature of individuals who were at any time the proper officers of a
Subsidiary Guarantor shall bind such Subsidiary Guarantor, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of the Security on which such Subsidiary Guarantee
is endorsed or did not hold such offices at the date of such Subsidiary
Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee endorsed thereon on behalf of the Subsidiary Guarantors and
shall bind each Subsidiary Guarantor notwithstanding the fact that Subsidiary
Guarantee does not bear the signature of such Subsidiary Guarantor. Each of the
Subsidiary Guarantors hereby jointly and severally agrees that its Subsidiary
Guarantee set forth in Section 1201 and in the form of Subsidiary Guarantee
established pursuant to Section 206 shall remain in full force and effect
notwithstanding any failure to endorse a Subsidiary Guarantee on any Security.
SECTION 1203. RELEASE OF SUBSIDIARY GUARANTORS.
--------------------------------
Each Subsidiary Guarantee will remain in effect with respect
to the respective Subsidiary Guarantor until the entire principal of and
interest (and Liquidated Damages, if any) on the Securities shall have been paid
in full or otherwise discharged in accordance with the provisions of the
Securities, this Indenture and the Registration Rights Agreement and all amounts
owing to the Trustee hereunder have been paid; PROVIDED, HOWEVER, that if all of
the issued and outstanding shares of Voting Stock of such Subsidiary Guarantor
are sold, directly or indirectly, by the Company or another Wholly Owned
Subsidiary of the Company to any Person (other than the Company or another
Wholly Owned Subsidiary of the Company), then, upon delivery by the Company of
an Officers' Certificate and an Opinion of Counsel stating that all conditions
precedent, if any, herein provided for relating to the release of such
Subsidiary Guarantor from its obligations under its Subsidiary Guarantee and
this Article Twelve have been complied with, such Subsidiary Guarantor shall be
released and discharged of its obligations under its Subsidiary Guarantee and
under this Article
- 78 -
Twelve without any action on the part of the Trustee or any Holder, and the
Trustee shall execute any documents reasonably required in order to acknowledge
the release of such Subsidiary Guarantor from its obligations under its
Subsidiary Guarantee endorsed on the Securities and under this Article Twelve.
ARTICLE THIRTEEN
Meetings of Holders of Securities
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
-----------------------------------------
A meeting of Holders of Securities may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities for any purpose specified in Section 1301, to be held at
such time and at such place in The City of New York, New York as the
Trustee shall determine. Notice of every meeting of Holders of
Securities, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 105, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities shall have requested the Trustee
to call a meeting of the Holders of Securities for any purpose
specified in Section 1301, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities in the amount specified,
as the case may be, may determine the time and the place in The City of
New York, New York for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in paragraph (a) of this
Section.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
------------------------------------
To be entitled to vote at any meeting of Holders of
Securities, a Person shall be (a) a Holder of one or more Outstanding
Securities, or (b) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel, any representatives of the Trustee and its counsel and any
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representatives of the Company and its counsel.
SECTION 1304. QUORUM; ACTION.
--------------
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities, be dissolved. In any other
case, the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting (subject to repeated applications of this sentence). Notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1302(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage of
the principal amount of the Outstanding Securities which shall constitute a
quorum.
At a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid, any resolution and all matters (except
as limited by the proviso to Section 902) shall be effectively passed and
decided if passed or decided by the Persons entitled to vote not less than a
majority in aggregate principal amount of Outstanding Securities.
Any resolution passed or decisions taken at any meeting of
Holders of Securities duly held in accordance with this Section shall be binding
on all the Holders of Securities, whether or not present or represented at the
meeting.
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
-----------------------------------------------------------
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities in regard to proof
of the holding of Securities and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted
or required by any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the appointment of
any proxy shall be proved in the manner specified in Section 104. Such
regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
- 80 -
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be the Trustee) of the meeting, unless
the meeting shall have been called by the Company or by Holders of
Securities as provided in Section 1302(b), in which case the Company or
the Holders of Securities calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in principal amount of the
Outstanding Securities represented at the meeting.
(c) At any meeting, each Holder of a Security or proxy shall
be entitled to one vote for each $1,000 principal amount of Securities
held or represented by him; PROVIDED, HOWEVER, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.
(d) Any meeting of Holders of Securities duly called pursuant
to Section 1302 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities represented at the meeting, and the meeting
may be held as so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of
Holders of Securities shall be by written ballots on which shall be subscribed
the signatures of the Holders of Securities or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities held
or represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record, at least in duplicate, of the proceedings of each meeting of Holders of
Securities shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
This 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 as of the day and year first above written.
Attest: STAPLES, INC.
/s/ Xxxx X. Xxxxxxxxxx By /s/ Xxxx X. Xxxxxxx
----------------------------- --------------------------------
Xxxx X. XxxXxxxxxx Xxxx X. Xxxxxxx
Senior Vice President, Executive Vice President,
General Counsel and Chief Financial Officer and
Secretary Chief Administrative Officer
STAPLES THE OFFICE SUPERSTORE, INC.,
as Subsidiary Guarantor
By /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
Executive Vice President,
Chief Financial Officer and
Chief Administrative Officer
STAPLES THE OFFICE SUPERSTORE EAST,
INC.,
as Subsidiary Guarantor
By /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
Executive Vice President,
Chief Financial Officer and
Chief Administrative Officer
STAPLES CONTRACT & COMMERCIAL, INC.,
as Subsidiary Guarantor
By /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
Executive Vice President,
Chief Financial Officer and
Chief Administrative Officer
- 82 -
HACKENSACK FUNDING, LLC
By /s/ Xxxxxxx Xxxxxxx
-------------------------------
Xxxxxxx Xxxxxxx
Treasurer
ROCHESTER CAPITAL, LLC
By /s/ Xxxxxxx Xxxxxxx
-------------------------------
Xxxxxxx Xxxxxxx
President
HSBC BANK USA,
as Trustee
By /s/ Xxxxx X. Xxxxxx
-------------------------------
Authorized Signature
- 83 -
TOWN OF FRAMINGHAM )
) ss.:
COUNTY OF MIDDLESEX )
On the 27th day of September, 2002 before me personally came
Xxxx X. Xxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he is Executive Vice President, Chief Financial Officer and Chief
Administrative Officer of Staples, Inc., Staples the Office Superstore, Inc.,
Staples the Office Superstore East, Inc. and Staples Contract & Commercial, Inc,
the corporations described in and which executed the foregoing instrument and
that the foregoing instrument was executed by authority of the Board of
Directors of said corporations.
/s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxx
Notary Public
Commission Expires 10/20/06
TOWN OF FRAMINGHAM )
) ss.:
COUNTY OF MIDDLESEX )
On the 27th day of September, 2002 before me personally came
Xxxxxxx Xxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he is Treasurer of Hackensack Funding, LLC and President of Rochester
Capital, LLC, the limited liability companies described in and which executed
the foregoing instrument and that the foregoing instrument was executed by
authority of the Board of Directors of Hackensack Funding, LLC and of the Sole
Member of Rochester Capital, LLC.
/s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxx
Notary Public
Commission Expires 10/20/06
CITY OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of September, 2002 before me personally came
Xxxxx X. Xxxxxx, to me known, who, being by me duly sworn, did depose and say
that [he - she] is Vice President of HSBC Bank USA, one of the corporations
described in and which executed the foregoing instrument and that the foregoing
instrument was executed by authority of the Board of Directors of said
corporation.
/S/ Xxxxxx Xxxxxxxxx
----------------------------------
Xxxxxx Xxxxxxxxx
No. 24-01MA4761665
Notary Public, State of New York
Qualified in Kings County
Commission Expires 11-30-02
CITY OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of September, 2002 before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that [he - she] is _______________________________ of _____________________, one
of the corporations described in and which executed the foregoing instrument and
that the foregoing instrument was executed by authority of the Board of
Directors of said corporation.
----------------------------------
ANNEX A -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to
Section 305(b)(1) of the Indenture)
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Issuer Services
Re: o % Senior Notes due o
OF STAPLES, INC. (THE "SECURITIES")
Reference is made to the Indenture, dated as of September o,
2002 (the "Indenture"), among Staples, Inc. (the "Company"), the Subsidiary
Guarantors named therein and HSBC Bank USA, as Trustee. Terms used herein and
defined in the Indenture or in Rule 144 under the U.S. Securities Act of 1933,
as amended (the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal
amount of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s).
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that (i) it is the sole beneficial owner of the Specified
Securities, (ii) it is acting on behalf of all the beneficial owners of the
Specified Securities and is duly authorized by them to do so or (iii) it is the
Holder of a Global Security and has received a certification to the effect set
forth below. Such beneficial owner or owners are referred to herein collectively
as the "Owner". If the Specified Securities are represented by a Global
Security, they are held through the Depositary or an Agent Member in the name of
the Undersigned, as or on behalf of the Owner. If the Specified Securities are
not represented by a Global Security, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Restricted Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 144A or Rule 144 under the Securities Act and
A-1
all applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) RULE 144A TRANSFERS. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably believe is a
"qualified institutional buyer" within the meaning of Rule 144A, acquiring
for its own account or for the account of a qualified institutional buyer;
and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner may
be relying on Rule 144A in connection with the transfer; and
(2) RULE 144 TRANSFERS. If the transfer is being effected
pursuant to Rule 144:
the transfer is occurring after a holding period of at least
one year (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of the Company,
whichever is later, and is being effected in accordance with
the applicable amount, manner of sale and notice requirements
of Rule 144.
A-2
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Purchasers.
Dated: ____________________________________
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this
certificate.)
By: ________________________________
Name:
Title:
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the person
signing on behalf of the Undersigned
must be stated.)
A-3
ANNEX B -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to Section305(b)(1)
of the Indenture)
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Issuer Services
Re: ! % Senior Notes due !
(THE "SECURITIES")
Reference is made to the Indenture, dated as of September o,
2002 (the "Indenture"), among Staples, Inc. (the "Company"), the Subsidiary
Guarantors named therein and HSBC Bank USA, as Trustee. Terms used herein and
defined in the Indenture or in Regulation S or Rule 144 under the U.S.
Securities Act of 1933, as amended (the "Securities Act") are used herein as so
defined.
This certificate relates to U.S. $_____________ principal
amount of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s).
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that (i) it is the sole beneficial owner of
the Specified Securities, (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so or
(iii) it is the Holder of a Global Security and has received a certification to
the effect set forth below. Such beneficial owner or owners are referred to
herein collectively as the "Owner". If the Specified Securities are represented
by a Global Security, they are held through the Depositary or an Agent Member in
the name of the Undersigned, as or on behalf of the Owner. If the Specified
Securities are not represented by a Global Security, they are registered in the
name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Regulation S Security. In connection with such transfer, the Owner hereby
certifies or has certified that, unless such transfer is being effected pursuant
to an effective registration statement under the Securities Act, it is being
effected in accordance with Rule 904 of Regulation S or Rule 144 under the
Securities Act and with all applicable securities laws of the states of the
B-1
United States and other jurisdictions. Accordingly, the Owner hereby further
certifies or has certified as follows:
(1) RULE 904 TRANSFERS. If the transfer is being effected in
accordance with Rule 904 of Regulation S:
(A) the Owner is not a distributor of the Securities,
an affiliate of the Company or any such distributor or a person acting
on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not
made to a person in the United States or for the account or benefit of
a U.S. Person;
(C) either:
(i) at the time the buy order was
originated, the Transferee was outside the United
States or the Owner and any person acting on its
behalf reasonably believed that the Transferee was
outside the United States, or
(ii) the transaction is being executed in,
on or through the facilities of the Eurobond market,
as regulated by the International Securities Market
Association or another designated offshore securities
market and neither the Owner nor any person acting on
its behalf knows that the transaction has been
prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the
United States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has
received a selling concession, fee or other remuneration in respect of
the Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(c)(1) have been
satisfied; and
(F) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act.
(2) RULE 144 TRANSFERS. If the transfer is being effected
pursuant to Rule 144:
the transfer is occurring after a holding period of at least
one year (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of the Company,
whichever is later, and is being effected in accordance with
the applicable amount, manner of sale and notice requirements
of Rule 144.
B-2
1
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Purchasers.
Dated: ____________________________________
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this
certificate.)
By: ________________________________
Name:
Title:
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the person
signing on behalf of the Undersigned
must be stated.)
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