[EXHIBIT 4.1]
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XXXX-XXXXX STORES, INC.,
Issuer
and
THE GUARANTORS NAMED HEREIN,
Guarantors
to
FIRST UNION NATIONAL BANK,
Trustee
------------------
INDENTURE
------------------
Dated as of December 26, 2000
Debt Securities
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Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
------------------------------ ----------------------
ss.310(a)(1) ..................................... 607
(a)(2) ..................................... 607
(b) ..................................... 608
ss.312(a) ..................................... 701
(b) ..................................... 702
(c) ..................................... 702
ss.313(a) ..................................... 703
(b)(2) ..................................... 703
(c) ..................................... 703
(d) ..................................... 703
ss.314(a) ..................................... 704
(c)(1) ..................................... 102
(c)(2) ..................................... 102
(e) ..................................... 102
(f) ..................................... 102
ss.316(a) (last sentence)................................. 101
(a)(1)(A) ..................................... 502, 512
(a)(1)(B) ..................................... 513
(b) ..................................... 508
ss.317(a)(1) ..................................... 503
(a)(2) ..................................... 504
(b) ..................................... 1003
ss.318(a) ..................................... 108
-------------------------
Note:This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
Table of Contents
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions..................................................1
Section 102. Compliance Certificates and Opinions........................12
Section 103. Form of Documents Delivered to Trustee......................12
Section 104. Acts of Holders.............................................13
Section 105. Notices, etc. to Trustee and Company........................15
Section 106. Notice to Holders of Securities; Waiver.....................15
Section 107. Language of Notices.........................................16
Section 108. Conflict with Trust Indenture Act...........................16
Section 109. Effect of Headings and Table of Contents....................16
Section 110. Successors and Assigns......................................16
Section 111. Separability Clause.........................................17
Section 112. Benefits of Indenture.......................................17
Section 113. Governing Law...............................................17
Section 114. Legal Holidays..............................................17
Section 115. Counterparts................................................17
Section 116. Judgment Currency...........................................18
Section 117. Immunity of Stockholders, Directors, Officers
and Agents of the Company...................................18
Section 118. Rules of Construction.......................................18
ARTICLE II
SECURITIES FORMS
Section 201. Forms Generally.............................................19
Section 202. Form of Trustee's Certificate of Authentication.............19
Section 203. Securities in Global Form...................................20
Section 204. Form of Subsidiary Guarantee................................21
ARTICLE III
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series........................21
Section 302. Currency; Denominations.....................................26
Section 303. Execution, Authentication, Delivery and Dating..............26
Section 304. Temporary Securities........................................27
Section 305. Registration, Transfer and Exchange.........................28
Section 306. Mutilated, Destroyed, Lost and Stolen Securities............32
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Section 307. Payment of Interest and Certain Additional Amounts; Rights
to Interest and Certain Additional Amounts Preserved........33
Section 308. Persons Deemed Owners.......................................35
Section 309. Cancellation................................................35
Section 310. Computation of Interest.....................................36
ARTICLE IV
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge..................................36
Section 402. Defeasance and Covenant Defeasance..........................38
Section 403. Application of Trust Money..................................42
Section 404. Reinstatement...............................................42
ARTICLE V
REMEDIES
Section 501. Events of Default...........................................42
Section 502. Acceleration of Maturity; Rescission and Annulment..........44
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee..................................................46
Section 504. Trustee May File Proofs of Claim............................47
Section 505. Trustee May Enforce Claims without Possession of
Securities or Coupons.......................................47
Section 506. Application of Money Collected..............................48
Section 507. Limitations on Suits........................................48
Section 508. Unconditional Right of Holders to Receive Principal and
any Premium, Interest and Additional Amounts................49
Section 509. Restoration of Rights and Remedies..........................49
Section 510. Rights and Remedies Cumulative..............................49
Section 511. Delay or Omission Not Waiver................................49
Section 512. Control by Holders of Securities............................50
Section 513. Waiver of Past Defaults.....................................50
Section 514. Waiver of Stay or Extension Laws............................50
Section 515. Undertaking for Costs.......................................51
ARTICLE VI
THE TRUSTEE
Section 601. Certain Rights of Trustee...................................51
Section 602. Notice of Defaults..........................................52
Section 603. Not Responsible for Recitals or Issuance of Securities......53
Section 604. May Hold Securities.........................................53
Section 605. Money Held in Trust.........................................53
Section 606. Compensation and Reimbursement..............................53
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Section 607. Corporate Trustee Required; Eligibility.....................54
Section 608. Resignation and Removal; Appointment of Successor...........54
Section 609. Acceptance of Appointment by Successor......................56
Section 610. Merger, Conversion, Consolidation or Succession to Business.57
Section 611. Appointment of Authenticating Agent.........................57
ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders...59
Section 702. Preservation of Information; Communications to Holders......60
Section 703. Reports by Trustee..........................................60
Section 704. Reports by Company and Guarantors...........................60
ARTICLE VIII
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc., Only on Certain Terms........61
Section 802. Successor Person Substituted for Company....................63
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders..........63
Section 902. Supplemental Indentures with Consent of Holders.............64
Section 903. Execution of Supplemental Indentures........................66
Section 904. Effect of Supplemental Indentures...........................66
Section 905. Reference in Securities to Supplemental Indentures..........66
Section 906. Conformity with Trust Indenture Act.........................66
Section 907. Notice of Supplemental Indenture ...........................66
ARTICLE X
COVENANTS
Section 1001. Payment of Principal, Premium, Interest and Additional
Amounts.....................................................66
Section 1002. Maintenance of Office or Agency.............................67
Section 1003. Money for Securities Payments to Be Held in Trust...........68
Section 1004. Additional Amounts..........................................69
Section 1005. Corporate Existence.........................................70
Section 1006. Limitation on Liens.........................................70
Section 1007. Limitation on Sale and Leaseback Transactions...............73
Section 1008. Maintenance of Properties...................................74
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Section 1009. Payment of Taxes and Other Claims...........................74
Section 1010. Waiver of Certain Covenants.................................75
Section 1011. Company Statement as to Compliance..........................75
Section 1012. Calculation of Original Issue Discount......................75
ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article....................................75
Section 1102. Election to Redeem; Notice to Trustee.......................76
Section 1103. Selection by Trustee of Securities to be Redeemed...........76
Section 1104. Notice of Redemption........................................76
Section 1105. Deposit of Redemption Price.................................78
Section 1106. Securities Payable on Redemption Date.......................78
Section 1107. Securities Redeemed in Part.................................79
ARTICLE XII
SINKING FUNDS
Section 1201. Applicability of Article....................................79
Section 1202. Satisfaction of Sinking Fund Payments with Securities.......80
Section 1203. Redemption of Securities for Sinking Fund...................80
ARTICLE XIII
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article....................................81
ARTICLE XIV
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article....................................81
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called...................82
Section 1502. Call, Notice and Place of Meetings..........................82
Section 1503. Persons Entitled to Vote at Meetings........................82
Section 1504. Quorum; Action..............................................83
Section 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.................................................83
Section 1506. Counting Votes and Recording Action of Meetings.............84
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ARTICLE XVI
SUBSIDIARY GUARANTEE
Section 1601. Applicability of Article....................................85
Section 1602. Subsidiary Guarantee........................................85
Section 1603. Execution and Delivery of Subsidiary Guarantees.............88
Section 1604. Release of Guarantors.......................................88
Section 1605. Additional Guarantors.......................................88
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INDENTURE, dated as of December 26, 2000 (the "Indenture"), among
Xxxx-Xxxxx Stores, Inc., a corporation duly organized and existing under the
laws of the State of Florida (hereinafter called the "Company"), having its
principal executive office located at Jacksonville, Florida, each of the
Guarantors (as hereinafter defined) and First Union National Bank, a national
banking association, duly organized and existing under the laws of the United
States of America (hereinafter called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Each Guarantor has duly authorized the issuance of a guarantee of the
Securities, and to provide therefore, each Guarantor has duly authorized the
execution and delivery of this Indenture to provided for its guarantee of the
Securities to the extent provided in or pursuant to this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined) as
follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture
or unless the context otherwise requires, for all purposes of this Indenture:
(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;
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(2) all other terms used herein which are defined in the Trust Indenture
Act either directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles
and, except as otherwise herein expressly provided, the terms "generally
accepted accounting principles" or "GAAP" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation;
(4) the words "herein", "hereof", "hereto" 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; and
(5) the word "or" is always used inclusively (for example, the phrase "A or
B" means "A or B or both", not "either A or B but not both").
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act", when used with respect to any Holders, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing to
such Holders.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control", when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, as of the time of determination, the present value (discounted at the
rate per annum equal to the rate of interest implicit in the lease involved in
such Sale and Leaseback Transaction, as determined in good faith by the Board of
Directors and set forth in a Board Resolution) of the obligation of the lessee
thereunder for rental payments (excluding, however, any amounts required to be
paid by such lessee, whether or not designated as rent or additional rent, on
account of maintenance and repairs, insurance, taxes, assessments, water rates
or similar charges or any amounts required to be paid by such lessee thereunder
contingent upon the amount of sales or similar contingent amounts) during the
remaining term of such lease (including any period for which such lease has been
extended or may, at the option of the lessor, be extended). In the case of any
lease which is terminable by the lessee upon the payment of a penalty, such
rental payments shall also include the amount of such penalty, but no rental
payments shall be considered as required to be paid under such lease subsequent
to the first date upon which it may be so terminated.
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"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer.
"Board of Directors" means with respect to the Company, the board of
directors of the Company and with respect to a Guarantor, the board of directors
of such Guarantor or any committee of the respective board duly authorized to
act generally or in any particular respect for the Company or such Guarantor, as
the case may be, under the Indenture.
"Board Resolution" means a copy of one or more resolutions, certified
by the Secretary or an Assistant Secretary of the Company or a Guarantor, as the
case may be, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, delivered to the
Trustee.
"Business Day" means, with respect to the Securities of any series
unless otherwise specified pursuant to Section 301 with respect to such
Securities, any day other than a Saturday, Sunday or other day on which banking
institutions in The City of New York are authorized or obligated by law,
regulation or executive order to close; provided that such term shall mean, when
used with respect to any payment of principal of or premium, if any, or
interest, if any, on the Securities of any series to be made at any Place of
Payment for such Securities, unless otherwise specified pursuant to Section 301
with respect to such Securities, any day other than a Saturday, Sunday or other
day on which banking institutions in such Place of Payment are authorized or
obligated by law, regulation or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, or, if at any time after the execution of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Common Stock" includes any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"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
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this Indenture, and thereafter "Company" shall mean such successor Person, and
any other obligor upon the Securities.
"Company Request" and "Company Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by the
Chairman of the Board of Directors, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means, with respect to the Company
and as of any date of determination, the Company's total assets and of the
Company's consolidated Subsidiaries determined in accordance with GAAP as they
appear on the Company's then most recently prepared consolidated balance sheet
as of the end of a fiscal quarter, less (1) all liabilities shown on such
consolidated balance sheet that are classified and accounted for as current
liabilities or that otherwise would be considered current liabilities under GAAP
and (2) all assets shown on such consolidated balance sheet that are classified
and accounted for as intangible assets or that otherwise would be considered
intangible assets under GAAP, including, without limitation, franchises, patents
and patent applications, trademarks, brand names and goodwill.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community, or
(ii) any currency unit or composite currency other than the ECU for the purposes
for which it was established.
"Corporate Trust Office" means either (A) the designated corporate
trust office of the Trustee at which at any particular time its corporate trust
business for this Indenture shall be administered, which office at the date of
original execution of this Indenture is located at 000 Xxxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Corporate Trust Department, or
(B) for purposes of Sections 301(9) and 1002 (unless otherwise specified
pursuant to Section 301), the corporate trust office of the Trustee in the
Borough of Manhattan, The City of New York at which at any particular time its
corporate trust business shall be administered in The City of New York, which
office at the date of original execution of this Indenture is located at 00
Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx, 00000.
"Corporation" includes corporations and limited liability companies
and, except for purposes of Article Eight, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency", with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
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"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Corporation, CUSIP Service Bureau.
"Debt" means indebtedness of the Company or any of its Subsidiaries for
borrowed money or evidenced by bonds, notes, debentures or other similar
instruments issued by the Company or by any of its Subsidiaries.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to any Security issuable or issued in
the form of one or more global Securities, the Person designated as depository
by the Company in or pursuant to this Indenture, and, unless otherwise provided
with respect to any Security, any successor to such Person. If at any time there
is more than one such Person, "Depository" shall mean, with respect to any
Securities, the depository which has been appointed with respect to such
Securities.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
"Event of Default" has the meaning specified in Section 501.
"Excluded Debt" has the meaning specified in Section 1006.
"Excluded Sale or Leaseback" has the meaning specified in Section 1007.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the Euro, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such government.
"Fraudulent Transfer Laws" has the meaning specified in Section 1602.
"Funded Debt" means, as of any date of determination, any Debt of the
Company or any of its Subsidiaries which, under GAAP, would appear as
indebtedness on a consolidated balance sheet of the Company as of such date and
which matures by its terms (or by its terms is extendible or renewable at the
option of the Company or such Subsidiary, as the case may be, for a period
ending) more than 12 months from such date.
"GAAP" means generally accepted accounting principles in the United
States as in effect on the date of application thereof.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on the relevant Security or any
Additional Amounts in respect thereof shall be payable, in each case where the
payment or payments thereunder are supported by the full faith and credit of
such government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where the
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timely payment or payments thereunder are unconditionally guaranteed as a full
faith and credit obligation by the United States of America or such other
government or governments, and which, in the case of (i) or (ii), are not
callable or redeemable at the option of the issuer or issuers thereof, and shall
also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest
on or principal of or other amount with respect to any such Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of or
other amount with respect to the Government Obligation evidenced by such
depository receipt.
"Guaranteed Obligations" has the meaning specified in Section 1602.
"Guarantors" means (i) the subsidiaries listed in Schedule I hereto;
(ii) any successor of the foregoing; and (iii) each other subsidiary of the
Company that becomes a Guarantor in accordance with Section 1605 hereof; in each
case (i), (ii), and (iii) until such Guarantor ceases to be such in accordance
with Section 1604 hereof.
"Holder", in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 301 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under the
Securities or the Coupons, are independent public accountants within the meaning
of the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder, who may be the independent public
accountants regularly retained by the Company or who may be other independent
public accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to
this Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity, and premium, if any,
interest, if any, or Additional Amounts thereon may be determined with reference
to an index, formula or other method or methods.
"Interest", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1004, include such Additional
Amounts.
6
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 116.
"Legal Holidays" means, with respect to any Place of Payment or other
location, a Saturday, Sunday or other day on which banking institutions in such
Place of Payment or other location are authorized or obligated by law,
regulation or executive order to close.
"Lien" means any mortgage, pledge, lien, charge, security interest,
conditional sale or other title retention agreement or other encumbrance of any
nature whatsoever.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes a Redemption Date
for such Security.
"New York Banking Day" has the meaning specified in Section 116.
"Office" or "Agency", with respect to any Securities, means an office
or agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company
or a Guarantor, as the case may be, that complies with the requirements of
Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means, as to the Company or a Guarantor, a written
opinion of counsel, who may be an employee of or counsel for the Company or such
Guarantor, as the case may be, or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 502.
"Outstanding", when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the Security
Registrar or delivered to the Trustee or the Security Registrar for
cancellation;
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(b) any such Security for whose payment at the Maturity thereof money in
the necessary amount has been theretofore deposited pursuant hereto
(other than pursuant to Section 402) with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities and any Coupons appertaining
thereto, provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has effected
defeasance or covenant defeasance pursuant to Section 402, except to
the extent provided in Section 402;
(d) any such Security which has 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, unless there
shall have been presented to the Trustee proof satisfactory to it that
such Security is held by a bona fide purchaser in whose hands such
Security is a valid obligation of the Company; and
(e) any such Security converted or exchanged as contemplated by this
Indenture into Common Stock or other securities, if the terms of such
Security provide for such conversion or exchange pursuant to Section
301;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 502 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Company, any Guarantor or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making any such determination or
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of the Trustee knows to
be so owned shall be so disregarded. Securities so owned which shall have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee (A) the pledgee's right so to act with
respect
8
to such Securities and (B) that the pledgee is not the Company, a Guarantor or
any other obligor upon the Securities or any Coupons appertaining thereto or an
Affiliate of the Company, a Guarantor or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" and "person" mean any individual, corporation, business trust,
partnership, joint venture, joint-stock company, limited liability company,
association, company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same indebtedness 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 lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Principal Property" means any store, supermarket, shopping center,
service center or manufacturing, processing, distribution, research, research
and development, warehousing or administration facility (in each case including,
without limitation, land, leasehold interests, improvements, and fixtures) and
any equipment (other than trucks and truck trailers) owned by the Company or any
Subsidiary (including any of the foregoing acquired after the date of the
indenture) and located within the United States of America, other than any of
the foregoing which the Company's Board of Directors by Board Resolution and in
good faith declares, together with all other stores, supermarkets, shopping
centers, service centers and manufacturing, processing, distribution, research,
research and development, warehousing and administration facilities (in each
case including, without limitation, land, leasehold interests, improvements and
fixtures) and equipment (other than trucks and truck trailers) previously so
determined, are not of material importance to the business conducted by the
Company and the Company's Subsidiaries taken as an entirety.
"Redemption Date", with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price", with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
9
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any, specified
in or pursuant to this Indenture or such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 116.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer or employee of the Trustee to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means any Subsidiary of The Company which (1)
owns or leases a Principal Property (or portion thereof) and (2) (A)
substantially all of the property of which is located, or substantially all of
the business of which is carried on, within the United States of America or (B)
which is incorporated or organized under the laws of the United States of
America, any state thereof or the District of Columbia.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement, in one transaction or a series of related transactions, with any
person providing for the leasing to the Company or a Subsidiary of any Principal
Property (or portion thereof), whether owned at the date of the indenture or
thereafter acquired, which has been or is to be sold or transferred by the
Company or such Subsidiary to such person (or to any other person designated by
such person) with the intention of taking back a lease of such Principal
Property (or portion thereof).
"Secured Debt" means any Debt secured by a Lien on any Principal
Property or by a Lien on any Debt or shares of capital stock of, or other
ownership interests in, any Restricted Subsidiary, whether such Principal
Property, Debt, shares of capital stock or ownership interests are owned or
outstanding at the date of the indenture or thereafter acquired or issued, as
the case may be.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means, with respect to any Person, any
Subsidiary of such Person (i) the consolidated net revenues of which for the
most recent period of four fiscal quarters of the Company for which quarterly
and annual reports were required to be filed with the SEC under the Securities
Exchange Act of 1934 were greater than $250,000,000 or (ii) the consolidated
tangible assets of which as of the end of such period were greater than
$50,000,000; provided that, if at any time the aggregate amount of the
consolidated net revenues or consolidated tangible assets of all Subsidiaries
that are not Significant Subsidiaries of the Company exceeds 10% of the
Company's
10
revenues for any such period or 10% of the Company's consolidated tangible
assets as of the end of any such period, the Company (or, in the event the
Company has failed to do so within 10 days, the Trustee) shall designate
sufficient Subsidiaries as "Significant Subsidiaries" of the Company to
eliminate such excess, and such designated Subsidiaries shall for all purposes
of this Indenture constitute Significant Subsidiaries of the Company. For
purposes of making the determinations required in this definition, revenues and
assets of any foreign Subsidiaries shall be converted into dollars at the rates
used in preparing the consolidated balance sheet of the Company included in the
applicable reports.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"Subsidiary" means (1) any corporation at least a majority of the total
voting power of whose outstanding Voting Stock is owned, directly or indirectly,
at the date of determination by the Company and/or one or more other
Subsidiaries, and (2) any other person in which the Company and/or one or more
other Subsidiaries, directly or indirectly, at the date of determination, (x)
own at least a majority of the outstanding ownership interests or (y) have the
power to elect or direct the election of at least a majority of the directors,
trustees or members of any other governing body of such person.
"Subsidiary Guarantee" means the guarantee by any Guarantor of the
Company's obligations under this Indenture or any other obligor under this
Indenture or under the Securities, including any other Guarantor to pay
principal of, premium, if any, and interest when due and payable, and all other
amounts due or to become due under or in connection with this Indenture, the
Securities of any series and the performance of all other obligations to the
Trustee and the Holders under this Indenture and the Securities of any series,
according to the respective terms hereof and thereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there is
more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of such series.
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"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; and the term "United States of
America" means the United States of America.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Voting Stock" means, with respect to any corporation, securities of
any class or series of such corporation, the holders of which are ordinarily, in
the absence of contingencies, entitled to vote for the election of directors of
the corporation.
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in or pursuant to this
Indenture, upon any application or request by the Company or Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company
and any Guarantor shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents or any of them is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such a certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
12
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 or any
Guarantor may be based, insofar as it relates to legal matters, upon an Opinion
of Counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the opinion with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such 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 or any
Guarantor stating that the information with respect to such factual matters is
in the possession of the Company or any Guarantor unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be made,
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 an agent duly appointed in writing. If, but only if, Securities of a series
are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders of Securities of such
series may, alternatively, be embodied in and evidenced by the record of Holders
of Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee and the Company and any agent of the Trustee
or the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
13
Without limiting the generality of this Section 104, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depository that
is a Holder of a global Security, may make, give or take, by a proxy, or
proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture or the Securities to be made, given or taken by Holders, and a
Depository that is a Holder of a global Security may provide its proxy or
proxies to the beneficial owners of interests in any such global Security
through such Depository's standing instructions and customary practices.
The Company shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a Depository entitled under the procedures of such Depository to make,
give or take, by a proxy or proxies duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other Act provided
in or pursuant to this Indenture to be made, given or taken by Holders. If such
a record date is fixed, the Holders on such record date or their duly appointed
proxy or proxies, and only such Persons, shall be entitled to make, give or take
such request, demand, authorization, direction, notice, consent, waiver or other
Act, whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other Act
shall be valid or effective if made, given or taken more than 90 days after such
record date.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Company and the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding. The ownership, principal amount and serial numbers of
Bearer Securities held by the Person so executing such instrument or writing and
the date of the commencement and the date of the termination of holding the same
may also be proved in any other manner which the Company and the Trustee deem
sufficient.
14
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders of Registered Securities shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security 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 or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such Act is made upon such Security.
Section 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, the Company or any Guarantor
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, or
(2) the Company or any Guarantor by the Trustee or any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to the attention of its
Treasurer at the address of its principal office at Xxxx-Xxxxx Stores,
Inc., 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 or at any other
address previously furnished in writing to the Trustee by the Company
or such Guarantor.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security
15
affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in
The City of New York and, if such Securities are then listed on any
stock exchange outside the United States, in an Authorized Newspaper in
such city as the Company shall advise the Trustee that such stock
exchange so requires, on a Business Day at least twice, the first such
publication to be not earlier than the earliest date and the second
such publication not later than the latest date prescribed for the
giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
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 of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication, in which case the
Company shall provide the Trustee with the text of such notice in such language.
16
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and any
Guarantor shall bind its successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture, any Security, any Subsidiary
Guarantee or any Coupon shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture, any Security, any Subsidiary Guarantee or
any Coupon, express or implied, shall give to any Person, other than the parties
hereto, any Security Registrar, any Paying Agent and their successors hereunder
and the Holders of Securities or Coupons, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities, the Subsidiary Guarantees and any
Coupons shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made or instruments entered into and,
in each case, performed in said State.
Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or exchangeable,
shall be a day that is not a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in any Security or Coupon that specifically states
that such provision shall apply in lieu hereof) payment need not be made at such
Place of Payment on such date, and such Securities need not be converted or
exchanged on such date but such payment may be made, and such Securities may be
converted or exchanged, on the next succeeding day that is a Business Day at
such Place of
17
Payment with the same force and effect as if made on the Interest Payment Date
or at the Stated Maturity or Maturity or on such last day for conversion or
exchange, and no interest shall accrue on the amount payable on such date or at
such time for the period from and after such Interest Payment Date, Stated
Maturity, or Maturity or last day for conversion or exchange, as the case may
be, to such next succeeding Business Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 116. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a Currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Banking Day preceding that on which a final unappealable judgment is
given and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
clause (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of New York or a
day on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed. The provisions of
this Section 116 shall not be applicable with respect to any payment due on a
Security which is payable in Dollars.
Section 117. Immunity of Stockholders, Directors, Officers and Agents
of the Company.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any past, present or future stockholder,
employee, officer or director, as such, of the Company or of any predecessor or
successor, either directly or through the Company or any predecessor or
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders and as part of the consideration for
the issue of the Securities.
18
Section 118. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) words in the singular include the plural, and words in the
plural include the singular;
(4) provisions apply to successive events and transactions;
(5) the term "merger" includes a statutory share exchange and the
term "merged" has a correlating meaning;
(6) the masculine gender includes the feminine and the neuter;
(7) references to agreements and other instruments include
subsequent amendments thereto; and
(8) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section
or other subdivision.
ARTICLE II
SECURITIES FORMS
Section 201. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in
substantially the form established by or pursuant to a Board Resolution and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, in each case, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officer of the Company executing such Security or Coupon as evidenced by the
execution of such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons.
19
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officer of the Company executing such
Securities or Coupons, as evidenced by the execution of such Securities or
Coupons.
Each Security, if applicable, shall have a Subsidiary Guarantee
endorsed thereon in substantially the form set forth in this Article II.
Section 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within- mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By:
Authorized Signatory
Section 203. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in global form. If Securities
of a series shall be issuable in temporary or permanent global form, any such
Security may provide that it or any number of such Securities shall represent
the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges. Any endorsement of any Security in global form to reflect the amount,
or any increase or decrease in the amount, or changes in the rights of Holders,
of Outstanding Securities represented thereby shall be made in such manner and
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered pursuant to Section 303 or 304 with respect thereto. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not be
accompanied by or contained in an Officers' Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any
20
Additional Amounts in respect of any Security in temporary or permanent global
form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i) in the case of a
global Security in registered form, the Holder of such global Security in
registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 301.
Section 204. Form of Subsidiary Guarantee.
The form of Subsidiary Guarantee shall be set forth on the Securities
substantially as follows:
SUBSIDIARY GUARANTEE
For value received, each of the Guarantors named (or deemed herein to
be named) below hereby absolutely, fully and unconditionally and irrevocably
guarantees, jointly and severally with each other Guarantor, to the Holder of
this Security the payment of principal of, and premium, if any, and interest on
this Security upon which these Subsidiary Guarantees are endorsed in the amounts
and at the time when due and payable, whether by declaration thereof, or
otherwise, and interest on the overdue principal and interest, if any, of this
Security, if lawful, and the payment or performance of all other obligations of
the Company under the Indenture or the Securities, to the Holder of this
Security and the Trustee, all in accordance with and subject to the terms and
limitations of this Security and the Indenture. This Subsidiary Guarantee will
not become effective until the Trustee duly executes the certificate of
authentication on this Security. This Subsidiary Guarantee shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflict of law principles thereof.
IN WITNESS WHEREOF, each of the Guarantors has caused this Subsidiary
Guarantee to be duly executed.
[Insert Names of Guarantors]
By:
Title:
Attest:
21
ARTICLE III
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto prior to the issuance of any Securities of a series,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) if the Securities of the series will not have the benefit of
the Subsidiary Guarantees of the Guarantors;
(3) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of such series
pursuant to Section 304, 305, 306, 905 or 1107, upon repayment in part
of any Security of such series pursuant to Article Thirteen or upon
surrender in part of any Security for conversion or exchange into
Common Stock or other securities pursuant to its terms);
(4) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and
the terms, if any, upon which Bearer Securities may be exchanged for
Registered Securities and vice versa;
(5) if any of such Securities are to be issuable in global form,
when any of such Securities are to be issuable in global form and (i)
whether such Securities are to be issued in temporary or permanent
global form or both, (ii) whether beneficial owners of interests in
any such global Security may exchange such interests for Securities of
the same series and of like tenor and of any authorized form and
denomination, and the circumstances under which any such exchanges may
occur, if other than in the manner specified in Section 305, and (iii)
the name of the Depository with respect to any global Security;
(6) if any of such Securities are to be issuable as Bearer
Securities, the date as of which any such Bearer Security shall be
dated (if other than the date of original issuance of the first of
such Securities to be issued);
22
(7) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest
Payment Date therefor prior to the exchange, if any, of such temporary
Bearer Security for definitive Securities shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(8) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the principal
and premium, if any, of such Securities is payable;
(9) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate
or rates are to be determined, the date or dates, if any, from which
such interest shall accrue or the method or methods, if any, by which
such date or dates are to be determined, the Interest Payment Dates, if
any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable, the notice,
if any, to Holders regarding the determination of interest on a
floating rate Security and the manner of giving such notice, and the
basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(10) if in addition to or other than the Borough of Manhattan,
The City of New York, the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to such
Securities shall be payable, any of such Securities that are Registered
Securities may be surrendered for registration of transfer or exchange,
any of such Securities may be surrendered for conversion or exchange
and notices or demands to or upon the Company in respect of such
Securities and this Indenture may be served, the extent to which, or
the manner in which, any interest payment or Additional Amounts on a
global Security on an Interest Payment Date, will be paid and the
manner in which any principal of or premium, if any, on any global
Security will be paid;
(11) whether any of such Securities are to be redeemable at
the option of the Company and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company;
(12) if the Company is obligated to redeem or purchase any of
such Securities pursuant to any sinking fund or analogous provision or
at the option of any Holder thereof and, if so, the date or dates on
which, the period or periods within which, the price or prices at which
and the other terms and conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation, and any provisions for the remarketing of such Securities
so redeemed or purchased;
23
(13) the denominations in which any of such Securities that
are Registered Securities shall be issuable if other than denominations
of $1,000 and any integral multiple thereof, and the denominations in
which any of such Securities that are Bearer Securities shall be
issuable if other than the denomination of $5,000;
(14) whether the Securities of the series will be convertible
into shares of Common Stock and/or exchangeable for other securities,
and if so, the terms and conditions upon which such Securities will be
so convertible or exchangeable, and any deletions from or modifications
or additions to this Indenture to permit or to facilitate the issuance
of such convertible or exchangeable Securities or the administration
thereof;
(15) if other than the principal amount thereof, the portion
of the principal amount of any of such Securities that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion is to be determined;
(16) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities shall be
payable;
(17) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or
otherwise, in Dollars or in a Foreign Currency other than that in which
such Securities are stated to be payable, the date or dates on which,
the period or periods within which, and the other terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such
Securities or any of them are to be paid pursuant to such election, and
any deletions from or modifications of or additions to the terms of
this Indenture to provide for or to facilitate the issuance of
Securities denominated or payable, at the election of the Company or a
Holder thereof or otherwise, in a Foreign Currency;
(18) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to such
Securities may be determined with reference to an index, formula or
other method or methods (which index, formula or method or methods may
be based, without limitation, on one or more Currencies, commodities,
equity securities, equity indices or other indices), and, if so, the
terms and conditions upon which and the manner in which such amounts
shall be determined and paid or payable;
(19) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any of
such Securities (whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein),
and whether Section 1010 shall be applicable with respect to any such
additional covenants;
(20) if either or both of Section 402(2) relating to
defeasance or Section 402(3) relating to covenant defeasance shall not
be applicable to the Securities of such series, or any
24
covenants in addition to those specified in Section 402(3) relating to
the Securities of such series which shall be subject to covenant
defeasance, and, if the Securities of such series are subject to
repurchase or repayment at the option of the Holders thereof, whether
the Company's obligation to repurchase or repay such Securities will be
subject to defeasance or covenant defeasance, and any deletions from,
or modifications or additions to, the provisions of Article Four in
respect of the Securities of such series;
(21) if any of such Securities are to be issuable upon the
exercise of warrants, and the time, manner and place for such
Securities to be authenticated and delivered;
(22) if any of such Securities are to be issuable in global
form and are to be issuable in definitive form (whether upon original
issue or upon exchange of a temporary Security) only upon receipt of
certain certificates or other documents or satisfaction of other
conditions, then the form and terms of such certificates, documents or
conditions;
(23) whether and under what circumstances the Company will pay
Additional Amounts on such Securities to any holder who is a United
States Alien in respect of any tax, assessment or other governmental
charge and, if so, whether the Company will have the option to redeem
such Securities rather than pay such Additional Amounts;
(24) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities;
(25) the Person to whom any interest on any Registered
Security of such series shall be payable, if other than the Person in
whose name the Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, the manner in which, or the Person to
whom, any interest on any Bearer Security of such series shall be
payable, if other than upon presentation and surrender of the Coupons
appertaining thereto as they severally mature, and the extent to which,
or the manner in which, any interest payable on a temporary global
Security will be paid if other than in the manner provided in this
Indenture; and
(26) any other terms of such Securities and any deletions from
or modifications or additions to this Indenture in respect of such
Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest,
or method of determining the rate of interest, if any, Maturity, and the date
from which interest, if any, shall accrue and except as may otherwise be
provided by the Company in or pursuant to the Board Resolution and set forth in
the Officers' Certificate or in any indenture or indentures supplemental hereto
pertaining to such series of Securities. The terms of the Securities of any
series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Officers'
Certificate or supplemental indenture (telephonic instructions to be promptly
confirmed in writing by such person) and that such persons are authorized to
determine,
25
consistent with such Officers' Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officers' Certificate or supplemental indenture. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided by the Company as contemplated by this Section 301, a
series may be reopened for issuances of additional Securities of such series or
to establish additional terms of such series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
The Securities of each series shall have the benefit of the Subsidiary
Guarantees unless the Company elects otherwise upon the establishment of a
series pursuant to this Section 301.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided
in or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman,
its President or one of its Vice Presidents under its corporate seal reproduced
thereon and attested by its Treasurer, one of its Assistant Treasurers, its
Secretary or one of its Assistant Secretaries. Coupons shall be executed on
behalf of the Company by the Chairman, the President or any Vice President of
the Company. The signature of any of these officers on the Securities or any
Coupons appertaining thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, and, if applicable, having
endorsed thereon the Subsidiary Guarantees executed as provided in Section 1603
by Guarantors to the Trustee for authentication and, provided that the Board
Resolution and Officers' Certificate or supplemental indenture or indentures
with respect to such Securities referred to in Section 301 and a Company Order
for the authentication and delivery of such Securities have been delivered to
the Trustee, the Trustee in accordance with the Company
26
Order and subject to the provisions hereof and of such Securities shall
authenticate and deliver such Securities. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities and any Coupons appertaining thereto, the Trustee shall be
entitled to receive, and (subject to Sections 315(a) through 315(d) of the Trust
Indenture Act) shall be fully protected in relying upon, an Opinion of Counsel
to the effect that:
(a) the form or forms and terms of such Securities and
Coupons, if any, have been established in conformity with Sections 201
and 301 of this Indenture;
(b) all conditions precedent set forth in Sections 201, 301
and 303 of this Indenture to the authentication and delivery of such
Securities and Coupons, if any, appertaining thereto have been complied
with and that such Securities, and Coupons, when completed by
appropriate insertions (if applicable), executed and attested under the
Company's corporate seal by duly authorized officers of the Company,
delivered by duly authorized officers of the Company to the Trustee for
authentication pursuant to this Indenture, and authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Company, and, if
applicable, the Subsidiary Guarantees endorsed thereon will constitute
valid and legally binding obligations of the Guarantors, enforceable
against the Company or the Guarantors, as the case may be, in
accordance with their terms, except as enforcement thereof may be
subject to or limited by bankruptcy, insolvency, reorganization,
moratorium, arrangement, fraudulent conveyance, fraudulent transfer or
other similar laws relating to or affecting creditors' rights
generally, and subject to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel at the time of
issuance of each Security, but such opinion, with such modifications as counsel
shall deem appropriate, shall be delivered at or before the time of issuance of
the first Security of such series. After any such first delivery, any separate
request by the Company that the Trustee authenticate Securities of such series
for original issue will be deemed to be a certification by the Company that all
conditions precedent provided for in this Indenture relating to authentication
and delivery of such Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto 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
27
Security a certificate of authentication substantially in the form provided for
in Section 202 or 611 executed by or on behalf of the Trustee or by the
Authenticating Agent by the manual signature of one of its authorized officers.
Such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306 or 307 or as may otherwise be
provided in or pursuant to this Indenture, the Trustee shall not authenticate
and deliver any Bearer Security unless all Coupons appertaining thereto then
matured have been detached and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities and, if applicable,
having endorsed thereon the Subsidiary Guarantees in lieu of which they are
issued, in registered form or, if authorized in or pursuant to this Indenture,
in bearer form with one or more Coupons or without Coupons and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities and, if applicable, Subsidiary Guarantees may
determine, as conclusively evidenced by their execution of such Securities and
Subsidiary Guarantees. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions and, if applicable, having
endorsed thereon Subsidiary Guarantees executed by the Guarantors; provided,
however, that no definitive Bearer Security, except as provided in or pursuant
to this Indenture, shall be delivered in exchange for a temporary Registered
Security; and provided, further, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in compliance with
the conditions set forth in or pursuant to this Indenture. Unless otherwise
provided in or pursuant to this Indenture with respect to a temporary global
Security, until so exchanged the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series
28
and of transfers of the Registered Securities of such series. Such Office or
Agency shall be the "Security Registrar" for that series of Securities. Unless
otherwise specified in or pursuant to this Indenture or the Securities, the
Trustee shall be the initial Security Registrar for each series of Securities.
The Company shall have the right to remove and replace from time to time the
Security Registrar for any series of Securities; provided that no such removal
or replacement shall be effective until a successor Security Registrar with
respect to such series of Securities shall have been appointed by the Company
and shall have accepted such appointment. In the event that the Trustee shall
not be or shall cease to be Security Registrar with respect to a series of
Securities, it shall have the right to examine the Security Register for such
series at all reasonable times. There shall be only one Security Register for
each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Company shall
execute, if applicable, the Guarantors shall execute the Subsidiary Guarantees
endorsed thereon and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series denominated as authorized in or pursuant to this Indenture,
of a like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, if applicable, the
Guarantors shall execute the Subsidiary Guarantees endorsed thereon, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender of the Bearer Securities
to be exchanged at any Office or Agency for such series, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before
29
the opening of business at such Office or Agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such Office or Agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be (or, if
such Coupon is so surrendered with such Bearer Security, such Coupon shall be
returned to the Person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, if
applicable, the 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.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive certificated Securities only if (i) the Depository for such
Securities notifies the Company that it is unwilling or unable to continue as a
Depository for the global Security or at any time the Depository for such
Securities ceases to be a clearing agency registered as such under the
Securities Exchange Act of 1934, as amended, if so required by applicable law or
regulation, and no successor Depository for such Securities shall have been
appointed within 90 days of such notification or of the Company becoming aware
of the Depository's ceasing to be so registered, as the case may be, (ii) the
Company, in its sole discretion, executes and delivers to the Trustee a Company
Order to the effect that such global Security shall be so exchangeable, or (iii)
an Event of Default has occurred and is continuing with respect to such
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in clause (i), (ii) or (iii) of the preceding sentence, then
without unnecessary delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in such form and denominations as are required by
or pursuant to this Indenture, and of the same series, containing identical
terms and in aggregate principal amount equal to the principal amount of such
global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such global Security shall be surrendered
from time to time by the Depository as shall be specified in the Company Order
with respect thereto (which the Company agrees to deliver), and in accordance
with instructions given to the Trustee and the Depository (which instructions
shall be in writing but need not be contained in or accompanied by an Officers'
Certificate or be accompanied by an Opinion of Counsel), as shall be specified
in the Company Order with respect thereto to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or in part, for definitive
Securities as described above without charge. The Trustee shall authenticate and
make available for delivery, in exchange for each portion of such surrendered
global Security, a like aggregate principal amount of definitive Securities of
the same series of authorized denominations
30
and of like tenor as the portion of such global Security to be exchanged, which
(unless such Securities are not issuable both as Bearer Securities and as
Registered Securities, in which case the definitive Securities exchanged for the
global Security shall be issuable only in the form in which the Securities are
issuable, as provided in or pursuant to this Indenture) shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the Depository, but subject to the satisfaction of any
certification or other requirements to the issuance of Bearer Securities;
provided, however, that no such exchanges may occur during a period beginning at
the opening of business 15 days before any selection of Securities of the same
series to be redeemed and ending on the relevant Redemption Date; and provided,
further, that (unless otherwise provided in or pursuant to this Indenture) no
Bearer Security delivered in exchange for a portion of a global Security shall
be mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository or such other Depository referred to above in
accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a global Security
after the close of business at the Office or Agency for such Security where such
exchange occurs on or after (i) any Regular Record Date for such Security and
before the opening of business at such Office or Agency on the next Interest
Payment Date, or (ii) any Special Record Date for such Security and before the
opening of business at such Office or Agency on the related proposed date for
payment of interest or Defaulted Interest, as the case may be, interest shall
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but shall be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such global
Security shall be payable in accordance with the provisions of this Indenture.
All Securities and, if applicable, 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 Guarantors evidencing
the same debt and entitling the Holders thereof to the same benefits under this
Indenture as the Securities and Subsidiaries Guarantees surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security 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, or redemption of Securities or repayment 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, 905 or 1107, upon repayment or repurchase in part of any Registered
Security pursuant to Article Thirteen, or upon surrender in part of any
Registered Security for conversion or exchange into Common Stock or other
securities pursuant to its terms, in each case not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or exchange
any Securities during a period beginning at
31
the opening of business 15 days before the day of the selection for redemption
of Securities of like tenor and the same series under Section 1103 and ending at
the close of business on the day of such selection, (ii) to register the
transfer of or exchange any Registered Security, or portion thereof, so selected
for redemption, except in the case of any Registered Security to be redeemed in
part, the portion thereof not to be redeemed, (iii) to exchange any Bearer
Security so selected for redemption except, to the extent provided with respect
to such Bearer Security, that such Bearer Security may be exchanged for a
Registered Security of like tenor and the same series, provided that such
Registered Security shall be simultaneously surrendered for redemption with
written instruction for payment consistent with the provisions of this Indenture
or (iv) to issue, register the transfer of or exchange any Security which, in
accordance with its terms, has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute, if applicable, the Guarantors shall
execute the Subsidiary Guarantees endorsed thereon and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
containing identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains and, if
applicable, each Guarantor shall execute a replacement Subsidiary Guarantee.
Notwithstanding the foregoing provisions of this Section 306, in case
any mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an Office or Agency for such Securities located
outside the United States and, unless otherwise provided in or pursuant to this
Indenture, any interest on Bearer Securities and any Additional Amounts with
respect to such interest shall be payable only upon presentation and surrender
of the Coupons appertaining thereto.
32
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, with any Coupons appertaining thereto issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains, and, if applicable, the Subsidiary Guarantees endorsed thereon shall
constitute a separate obligation of the Company and, if applicable, the
respective Guarantees, whether or not the destroyed, lost or stolen Security and
Coupons appertaining thereto or the destroyed, lost or stolen Coupon shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
such series and any Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, shall (to the
extent lawful) be exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or Coupons.
Section 307. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest. Unless otherwise provided
in or pursuant to this Indenture, in case a Bearer Security is surrendered in
exchange for a Registered Security after the close of business at an Office or
Agency for such Security on any Regular Record Date therefor and before the
opening of business at such Office or Agency on the next succeeding Interest
Payment Date therefor, such Bearer Security shall be surrendered without the
Coupon relating to such Interest Payment Date and interest shall not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but shall be payable only to the Holder of
such Coupon when due in accordance with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
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 Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be 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
33
the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on such Registered 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 on or prior to the date of
the proposed payment, such money when so deposited to be held in trust
for the benefit of the Person 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 the Holder of
such Registered Security (or a Predecessor Security thereof) at his
address as it appears in the Security Register not less than 10 days
prior to such Special Record Date. The Trustee may, in its discretion,
in the name and at the expense of the Company cause a similar notice to
be published at least once in an Authorized Newspaper of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the
Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2). In case a Bearer Security is surrendered at the
Office or Agency for such Security in exchange for a Registered
Security after the close of business at such Office or Agency on any
Special Record Date and before the opening of business at such Office
or Agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the Coupon
relating to such Defaulted Interest and Defaulted Interest shall not be
payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture.
(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 such Security 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 payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series, at the option of the Company, interest on
Registered Securities that bear interest may be paid by mailing a check to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by transfer to an account maintained by the payee with a
bank located in the United States.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security
34
shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
In the case of any Registered Security of any series that is
convertible into shares of Common Stock or exchangeable for other securities,
which Registered Security is converted or exchanged after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Registered Security with respect to which the Stated Maturity is prior to
such Interest Payment Date), interest with respect to which the Stated Maturity
is on such Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion or exchange, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
that Registered Security (or one or more predecessor Registered Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Registered Security which is converted or exchanged, interest with
respect to which the Stated Maturity is after the date of conversion or exchange
of such Registered Security shall not be payable.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Guarantors, the Trustee and any agent of the Company,
the Guarantors or the Trustee may treat the Person in whose name such Registered
Security is registered in the Security Register as the owner of such Registered
Security for the purpose of receiving payment of principal of, any premium and
(subject to Sections 305 and 307) interest on and any Additional Amounts with
respect to such Registered Security and for all other purposes whatsoever,
whether or not any payment with respect to such Registered Security shall be
overdue, and neither the Company, the Guarantors, the Trustee or any agent of
the Company, the Guarantors or the Trustee shall be affected by notice to the
contrary.
The Company, the Guarantors, the Trustee and any agent of the Company,
the Guarantors or the Trustee may treat the bearer of any Bearer Security or the
bearer of any Coupon as the absolute owner of such Security or Coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not any payment with respect to such Security or
Coupon shall be overdue, and none of the Company, the Guarantors, the Trustee or
any agent of the Company, the Guarantors or the Trustee shall be affected by
notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Guarantors, the Trustee, and any agent of the Company, the Guarantors or the
Trustee as the owner of such global Security for all purposes whatsoever. None
of the Company, the Guarantors, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
35
Section 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. 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 cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by or pursuant to this Indenture. All cancelled Securities and Coupons held by
the Trustee shall be destroyed by the Trustee, unless by a Company Order the
Company directs their return to it.
Section 310. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in the
Securities of any series, interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order, any Coupons appertaining thereto and, if
applicable, any Subsidiary Guarantees endorsed thereon, and the Trustee, on
receipt of a Company Order, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when
(1) either
(a) all Securities of such series theretofore
authenticated and delivered and all Coupons appertaining
thereto (other than (i) Coupons appertaining to Bearer
Securities of such series surrendered in exchange for
Registered Securities of such series and maturing after such
exchange whose surrender is not required or has been waived as
provided in Xxxxxxx 000, (xx) Securities and Coupons of such
series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Xxxxxxx 000, (xxx)
Coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date
whose surrender has been waived as provided in Section 1107,
and (iv) Securities and Coupons of such series 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
36
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of
(i) or (ii) below, if applicable, any Coupons appertaining
thereto not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are
to be called for redemption within one year under
arrangements satisfactory 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, if applicable, a 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, money in the Currency in which such Securities are
payable in an amount sufficient to pay and discharge the
entire indebtedness on such Securities and any Coupons
appertaining thereto not theretofore delivered to the Trustee
for cancellation, including the principal of, any premium and
interest on, and, to the extent that the Securities of such
series provide for the payment of Additional Amounts thereon
and the amount of any such Additional Amounts which are or
will be payable with respect to the Securities of such series
is at the time of deposit reasonably determinable by the
Company (in the exercise by the Company of its sole and
absolute discretion), any Additional Amounts with respect to,
such Securities and any Coupons appertaining thereto, to the
date of such deposit (in the case of Securities which have
become due and payable) or to the Maturity thereof, as the
case may be;
(2) the Company or a Guarantor has paid or caused to be paid
all other sums payable hereunder by the Company and the Guarantors with
respect to the Outstanding Securities of such series and any Coupons
appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
37
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 606 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Company and the Trustee with respect to the Securities of such series
under Sections 305, 306, 403, 1002 and 1003, with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 1004 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to Section 401 (1)(b)), and with respect to any
rights to convert or exchange such Securities into Common Stock or other
securities, and the provisions of this Section 401 and Sections 403 and 404
shall survive.
Section 402. Defeasance and Covenant Defeasance.
(1) Unless, pursuant to Section 301, either or both of (i) defeasance
of the Securities of or within a series under clause (2) of this Section 402 or
(ii) covenant defeasance of the Securities of or within a series under clause
(3) of this Section 402 shall not be applicable with respect to the Securities
of such series, then such provisions, together with the other provisions of this
Section 402 (with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to such
Securities and any Coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to such Securities and any
Coupons appertaining thereto, elect to have Section 402(2) or Section 402(3) be
applied to such Outstanding Securities and any Coupons appertaining thereto upon
compliance with the conditions set forth below in this Section 402.
(2) Upon the Company's exercise of the above option applicable to this
Section 402(2) with respect to any Securities of or within a series, the Company
and each Guarantor shall be deemed to have been discharged from its obligations
with respect to such Outstanding Securities and any Coupons appertaining thereto
on the date the conditions set forth in clause (4) of this Section 402 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company and each Guarantor shall be deemed to have paid and discharged
the entire indebtedness represented by such Outstanding Securities and any
Coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of clause (5) of this Section 402 and the
other Sections of this Indenture referred to in clauses (i) and (ii) of this
paragraph, and to have satisfied all of its other obligations under such
Securities and any Coupons appertaining thereto and this Indenture insofar as
such Securities and any Coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of such
Outstanding Securities and any Coupons appertaining thereto to receive, solely
from the trust fund described in clause (4) of this Section 402 and as more
fully set forth in such Section, payments in respect of the principal of (and
premium, if any) and interest, if any, on, and Additional Amounts, if any, with
respect to, such Securities and any Coupons appertaining thereto when such
payments are due, and any rights of such Holder to convert or exchange such
Securities into Common Stock or other securities, (ii) the obligations of the
Company and the Trustee with respect to such Securities under Sections 305, 306,
1002 and 1003, with respect to the payment of Additional Amounts, if any, on
such Securities as contemplated by Section 1004 (but only to the extent that the
Additional Amounts payable with respect to such Securities exceed the amount
38
deposited in respect of such Additional Amounts pursuant to Section 401(4)(a)
below), and with respect to any rights to convert or exchange such Securities
into Common Stock or other securities, (iii) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (iv) this Section 402 and Section
403. The Company may exercise its option under this Section 402(2)
notwithstanding the prior exercise of its option under Section 402(3) with
respect to such Securities and any Coupons appertaining thereto.
(3) Upon the Company's exercise of the above option applicable to this
Section 402(3) with respect to any Securities of or within a series, the Company
and each Guarantor shall be released from its obligations under clauses (ii) and
(iii) of Section 1005 and under Sections 1006, 1007, 1008 and 1009 and, to
the extent specified pursuant to Section 301, any other covenant applicable to
such Securities, with respect to such Outstanding Securities and any Coupons
appertaining thereto on and after the date the conditions set forth in clause
(4) of this Section 402 are satisfied (hereinafter, "covenant defeasance"), and
such Securities and any Coupons appertaining thereto shall thereafter be deemed
to be not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with any such covenant, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any Coupons
appertaining thereto, the Company and each Guarantor may omit to comply with,
and shall have no liability in respect of, any term, condition or limitation set
forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default under
Section 501(4) or 501(9) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and Coupons
appertaining thereto shall be unaffected thereby.
(4) The following shall be the conditions to application of clause (2)
or (3) of this Section 402 to any Outstanding Securities of or within a series
and any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Section 402 applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any Coupons appertaining thereto, (1) an
amount in Dollars or in such Foreign Currency in which such Securities
and any Coupons appertaining thereto are then specified as payable at
Stated Maturity, or (2) Government Obligations applicable to such
Securities and Coupons appertaining thereto (determined on the basis of
the Currency in which such Securities and Coupons appertaining thereto
are then specified as payable at Stated Maturity or, if such defeasance
or covenant defeasance is to be effected in compliance with subsection
(f) below, on the relevant Redemption Date, as the case may be) which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one
day before the due date of any payment of principal of (and premium, if
any) and interest, if any, on such Securities and any Coupons
appertaining thereto, money in an amount, or (3) a combination thereof,
in any case, in an amount, sufficient, without consideration of any
39
reinvestment of such principal and interest, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (y) the principal of (and
premium, if any) and interest, if any, on, and, to the extent that such
Securities provide for the payment of Additional Amounts thereon and
the amount of any such Additional Amounts which are or will be payable
with respect to the Securities of such series is at the time of deposit
reasonably determinable by the Company (in the exercise by the Company
of its sole and absolute discretion), any Additional Amounts with
respect to, such Outstanding Securities and any Coupons appertaining
thereto on the Stated Maturity of such principal or installment of
principal or interest or the applicable Redemption Date, as the case
may be, and (z) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any Coupons
appertaining thereto on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities and any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company or
any Guarantor is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such
Securities and any Coupons appertaining thereto shall have occurred and
be continuing on the date of such deposit, and, solely in the case of
defeasance under Section 402(2), no Event of Default with respect to
such Securities and any Coupons appertaining thereto under clause (7)
or (8) of Section 501 or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities
and any Coupons appertaining thereto under clause (7) or (8) of Section
501 shall have occurred and be continuing at any time during the period
ending on the 91st day after the date of such deposit (it being
understood that this condition to defeasance under Section 402(2) shall
not be deemed satisfied until the expiration of such period).
(d) In the case of defeasance pursuant to Section 402(2), the
Company shall have delivered to the Trustee an Opinion of Counsel from
independent legal counsel stating that (x) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling, or (y) since the date of this Indenture there has been a change
in applicable federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the
Holders of such Outstanding Securities and any Coupons appertaining
thereto will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred;
or, in the case of covenant defeasance pursuant to Section 402(3), the
Company shall have delivered to the Trustee an Opinion of Counsel of
independent legal counsel to the effect that the Holders of such
Outstanding Securities and any Coupons appertaining thereto will not
recognize income, gain or loss for federal income tax purposes as a
result of such covenant defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
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(e) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that, after the 123rd day after the date of
deposit, all money and Government Obligations (or other property as may
be provided pursuant to Section 3.1) (including the proceeds thereof)
deposited or caused to be deposited with the Trustee (or other
qualifying trustee) pursuant to this clause (4) to be held in trust
will not be subject to any case or proceeding (whether voluntary or
involuntary) in respect of the Company under any Federal or State
bankruptcy, insolvency, reorganization or other similar law, or any
decree or order for relief in respect of the Company issued in
connection therewith.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance or covenant defeasance, as the
case may be, under this Indenture have been complied with.
(g) If the monies or Government Obligations or combination
thereof, as the case may be, deposited under clause (a) above are
sufficient to pay the principal of, and premium, if any, and interest,
if any, on and, to the extent provided in such clause (a), Additional
Amounts with respect to, such Securities provided such Securities are
redeemed on a particular Redemption Date, the Company shall have given
the Trustee irrevocable instructions to redeem such Securities on such
date and to provide notice of such redemption to Holders as provided in
or pursuant to this Indenture.
(h) Notwithstanding any other provisions of this Section
402(4), such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003,
all money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee -- collectively for purposes of this
Section 402(5), Section 403 and 404, the "Trustee") pursuant to clause (4) of
Section 402 in respect of any Outstanding Securities of any series and any
Coupons appertaining thereto shall be held in trust and applied by the Trustee
as provided in Section 403.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, if, after a deposit referred to in Section 402(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
41
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 402 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 402 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 402.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations deposited with the Trustee pursuant to Section
401 or 402 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the Coupons and this Indenture, to the payment,
either directly or through any Paying Agent (other than the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal, premium, interest and Additional Amounts for whose
payment such money has or Government Obligations have been deposited with or
received by the Trustee; but such money and Government Obligations need not be
segregated from other funds except to the extent required by law.
Section 404. Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash or
Government Obligations deposited pursuant to Section 401 or 402 in accordance
with this Indenture or the Debt Securities of the applicable series by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Debt
Securities of such series and any Guarantor's obligations under any Subsidiary
Guarantee shall be revived and reinstated as though no deposit had occurred
pursuant to Section 401 or 402, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply such money in accordance with this
Indenture and the Debt Securities of such series; provided, however, that if the
Company makes any payment of principal of, premium, if any, or interest, if any,
on any Debt Security of such series following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Debt Securities to receive such payment from the cash and Government
Obligations held by the Trustee or Paying Agent.
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ARTICLE V
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (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) unless
such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such series pursuant to this Indenture:
(1) default in the payment of any interest on, or any Additional
Amounts payable in respect of any interest on, any Security of such
series or any Coupon appertaining thereto when such interest or such
Additional Amounts, as the case may be, become due and payable, and
continuance of such default for a period of 30 days;
(2) default in the payment of any principal of or premium, if
any, on, or any Additional Amounts payable in respect of any principal
of or premium, if any, on, any Security of such series when due upon
Maturity;
(3) default in the deposit of any sinking fund payment or
analogous payment when due with respect to any Security of such
series;
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or any Security of such
series (other than a covenant or warranty for which the consequences
of breach or nonperformance are addressed elsewhere in this Section
501 or a covenant or warranty which has expressly been included in
this Indenture, whether or not by means of a supplemental indenture,
solely for the benefit of Securities of a series other than such
series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of such series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder;
(5) default in payment of any indebtedness for borrowed money of
the Company or any Subsidiary of the Company in an aggregate principal
amount in excess of $25,000,000, including such a default hereunder
with respect to Debt Securities of any other series, which default (i)
is not cured or (ii) shall have resulted in acceleration of the
maturity of such indebtedness, in either case, without such
indebtedness having been discharged, or such declaration of
acceleration having been rescinded or annulled, within a period of 10
days after there shall have been given to the Company by the Trustee,
or to the Company and the Trustee by the Holders of not less than 25%
in aggregate principal amount of the Debt Securities of that series
then outstanding, a written notice specifying such default and
requiring the Company or such Subsidiary to cause such indebtedness to
be discharged or
43
cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder;
(6) 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
Significant Subsidiary of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company, or any Significant Subsidiary of the
Company a 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 Significant
Subsidiary of the Company under any applicable Federal or State law,
or appointing a custodian, receiver, conservator, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company, or any Significant Subsidiary of the Company or of any
substantial part of the property of the Company, or any Significant
Subsidiary of the Company, or ordering the winding up or liquidation
of the affairs of the Company, or any Significant Subsidiary of the
Company, and the continuance of any such decree or order for relief
unstayed and in effect for a period of 60 consecutive days;
(7) the commencement by the Company, or any Significant
Subsidiary of the Company of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated
a bankrupt or insolvent, or the consent by the Company, or any
Significant Subsidiary of the Company to the entry of a decree or
order for relief in respect of the Company, or any Significant
Subsidiary of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company, or any Significant
Subsidiary of the Company, or the filing by the Company or any
Significant Subsidiary of the Company of a petition or answer or
consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by the Company, or any Significant
Subsidiary of the Company to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
conservator, liquidator, assignee, trustee, sequestrator or similar
official of the Company, or any Significant Subsidiary of the Company
or of any substantial part of the property of the Company, or any
Significant Subsidiary of the Company, or the making by the Company,
any Guarantor or any Significant Subsidiary of the Company of an
assignment for the benefit of creditors, or the taking of corporate
action by the Company, or any Significant Subsidiary of the Company in
furtherance of any such action;
(8) in the event the Guarantors have issued Subsidiary Guarantees
with respect to the Securities of such series, any Subsidiary
Guarantee shall for any reason cease to be, or shall for any reason be
asserted in writing by any Guarantor or the Company not to be, in full
force and effect and enforceable in accordance with its terms, except
to the extent contemplated by this Indenture and any such Subsidiary
Guarantee; or
(9) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
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Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default with respect to the Company
specified in clause (7) or (8) of Section 501) occurs and is continuing, then
either the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of such series may declare the principal of all the
Securities of such series, or such lesser amount as may be provided for in the
Securities of such series, and accrued and unpaid interest, if any, thereon to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders), and upon any such declaration such
principal or such lesser amount, as the case may be, and such accrued and unpaid
interest shall become immediately due and payable.
If an Event of Default with respect to the Company specified in clause
(7) or (8) of Section 501 occurs, all unpaid principal of and accrued interest
on and any Additional Amounts payable in respect of the Outstanding Securities
of that series (or such lesser amount as may be provided for in the Securities
of such series) shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder of
any Security of that series.
At any time after Securities of any series have been accelerated 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 not less
than a majority in principal amount of the Outstanding Securities of such
series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company or, if applicable, any Guarantor has paid or deposited
with the Trustee a sum of money sufficient to pay
(a) all overdue installments of any interest on any
Securities of such series and any Coupons appertaining thereto
which have become due otherwise then by such declaration of
acceleration and any Additional Amounts with respect thereto,
(b) the principal of and any premium on any
Securities of such series which have become due otherwise than
by such declaration of acceleration and any Additional Amounts
with respect thereto and, to the extent permitted by
applicable law, interest thereon at the rate or respective
rates, as the case may be, provided for in or with respect to
such Securities, or, if no such rate or rates are so provided,
at the rate or respective rates, as the case may be, of
interest borne by such Securities,
(c) to the extent permitted by applicable law,
interest upon installments of any interest, if any, which have
become due otherwise then by such declaration of acceleration
and any Additional Amounts with respect thereto at the rate or
respective rates, as the case may be, provided for in or with
respect to such Securities, or, if no such rate or rates are
so provided, at the rate or respective rates, as the case may
be, of interest borne by such Securities, and
45
(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 all other amounts due the Trustee under Section
606; and
(2) all Events of Default with respect to Securities of such
series other than the non-payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to Securities of
such series which shall have become due solely by such declaration of
acceleration, shall 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 and, if applicable, each Guarantor covenants that if
(1) default is made in the payment of interest on, or any
Additional Amounts payable in respect of any interest on, any Security
or any Coupon appertaining thereto when such interest or Additional
Amounts, as the case may be, shall have become due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of any principal of or
premium, if any, on, or any Additional Amounts payable in respect of
any principal of or premium, if any, on, any Security at its Maturity,
or
(3) default is made in the deposit of any sinking fund payment
when due,
the Company and each Guarantor, if applicable, shall, upon demand of the
Trustee, pay to the Trustee, for the benefit of the Holders of such Securities
and any Coupons appertaining thereto, the whole amount of money then due and
payable with respect to such Securities and any Coupons appertaining thereto,
with interest upon the overdue principal, any premium and, to the extent
permitted by applicable law, upon any overdue installments of interest and
Additional Amounts at the rate or respective rates, as the case may be, provided
for in or with respect to such Securities or, if no such rate or rates are so
provided, at the rate or respective rates, as the case may be, of interest borne
by such Securities, and, in addition thereto, such further amount of money 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 other amounts due to the Trustee under Section
606.
If the Company or any Guarantor, as the case may be, fails to pay the
money it is required to pay the Trustee pursuant to the preceding paragraph
forthwith upon the demand of the Trustee, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the
collection of the money so due and unpaid, and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the Company, any
Guarantor or any other obligor upon such Securities and any Coupons appertaining
thereto and collect the monies adjudged or decreed to be payable in the manner
provided by law out of the property of the Company, [any Guarantor] or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
46
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any Coupons appertaining thereto 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 such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, any Guarantor or any other obligor
upon the Securities or the property of the Company, any Guarantor or such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of any overdue principal, premium,
interest or Additional Amounts) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of the principal and any premium, interest and Additional Amounts
owing and unpaid in respect of the Securities and any Coupons
appertaining thereto and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents or counsel) and
of the Holders of Securities or any Coupons allowed in such judicial
proceeding, and
(2) to collect and receive any monies 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 of Securities or any Coupons 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 of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities, any Subsidiary Guarantee or Coupons or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Holder of a Security or any Coupon in any such proceeding.
47
Section 505. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture, any of the
Securities, any Subsidiary Guarantee or Coupons may be prosecuted and enforced
by the Trustee without the possession of any of the Securities or Coupons or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery or judgment, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, shall be for the ratable benefit of each and
every Holder of a Security or Coupon in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and any Coupons for principal and any premium, interest
and Additional Amounts 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 aggregate amounts due and payable on
such Securities and Coupons for principal and any premium, interest
and Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
48
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture, any Security or any Subsidiary Guarantee, if any, to affect,
disturb or prejudice the rights of any other such Holders or Holders of
Securities of any other series, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all such Holders.
Section 508. Unconditional Right of Holders to Receive Principal and
any Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium, if any, and
(subject to Sections 305 and 307) interest, if any, on and any Additional
Amounts with respect to such Security or such Coupon, as the case may be, on the
respective Stated Maturity or Maturities therefor specified in such Security or
Coupon (or, in the case of redemption, on the Redemption Date or, in the case of
repayment at the option of such Holder if provided in or pursuant to this
Indenture, on the date such repayment is due) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Guarantors, the Trustee and each such Holder shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and each such Holder 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 or Coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to each and every Holder of a Security or a Coupon is intended
to be exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall 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
49
employment of any right or remedy hereunder, or otherwise, shall not, to the
extent permitted by law, prevent the concurrent assertion or employment of any
other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to any Holder of a Security or a Coupon may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or interest
on, or any Additional Amounts with respect to, any Security of such
series or any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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Section 514. Waiver of Stay or Extension Laws.
Each of the Company and the Guarantors covenants that (to the extent
that it may lawfully do so) 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 Guarantors expressly waives (to the extent that it may lawfully
do so) 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.
Section 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 515 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of Outstanding Securities of any
series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest, if any, on or
Additional Amounts, if any, with respect to any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date, and, in the case of repayment, on
or after the date for repayment) or for the enforcement of the right, if any, to
convert or exchange any Security into Common Stock or other securities in
accordance with its terms.
ARTICLE VI
THE TRUSTEE
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
51
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or a Company Order
(in each case, other than delivery of any Security, together with any
Coupons appertaining thereto, to the Trustee for authentication and
delivery pursuant to Section 303 which shall be sufficiently evidenced
as provided therein) and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence shall be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by or pursuant to this Indenture
at the request or direction of any of the Holders of Securities of any
series or any Coupons appertaining thereto pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or
indemnity reasonably acceptable to the Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, coupon 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, during business hours and upon
reasonable notice, the books, records and premises of the Company,
personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 703(3), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any),
or interest, if any, on, or Additional Amounts or any sinking fund installment
with respect to, any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
52
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
best interest of the Holders of Securities and Coupons of such series; and
provided, further, that in the case of any default of the character specified in
Section 501(4) - 501(9) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 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 with respect to Securities of such series.
Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company or the Guarantor, as the case may be, and neither
the Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or the Coupons, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications set
forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of the Securities or the
proceeds thereof.
Section 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the Company
or any Guarantor, in its individual or any other capacity, may become the owner
or pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of
the Trust Indenture Act, may otherwise deal with the Company or any Guarantor
with the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other Person.
Section 605. Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
53
(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 the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder, except to the extent that any
such loss, liability or expense was due to the Trustee's negligence or
bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, or premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501(7) or (8) is intended to constitute an expense of
administration under any then applicable bankruptcy or insolvency law. "Trustee"
for purposes of this Section 606 shall include any predecessor Trustee but the
negligence or bad faith of any Trustee shall not affect the rights of any other
Trustee under this Section 606.
Section 607. Corporate Trustee Required; Eligibility.
(1) There shall at all times be a Trustee hereunder that is a
Corporation, organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia, eligible under Section
310(a)(1) of the Trust Indenture Act to act as trustee under an indenture
qualified under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000 subject to supervision or examination by Federal or
state authority. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 608. Resignation and Removal; Appointment of Successor.
(1) 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 pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor
54
Trustee required by Section 609 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to such series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and the
Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act with
respect to Securities of any series after written request therefor by
the Company or any Holder of a Security of such series who has been a
bona fide Holder of a Security of such series for at least six months,
or
(b) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Company
or any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder
of a Security who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 609. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
609, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 609, any Holder of a Security who
has been a bona
55
fide Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(6) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 609. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company, the Guarantors and 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 hereunder of the retiring Trustee;
but, on the request of the Company or such successor Trustee, such retiring
Trustee, upon payment of its charges, shall execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and, subject to Section 1003, shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 606.
(2) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act
or failure to act on the part of any other Trustee hereunder, and, upon the
execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall have no further
56
responsibility for the exercise of rights and powers or for the performance of
the duties and obligations vested in the Trustee under this Indenture with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates other than as hereinafter expressly set forth,
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 with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
such successor Trustee, such retiring Trustee, upon payment of its charges with
respect to the Securities of that or those series to which the appointment of
such successor relates and subject to Section 1003 shall duly assign, transfer
and deliver to such successor Trustee, to the extent contemplated by such
supplemental indenture, the property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, subject to its claim, if any,
provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (1) or (2) of this Section, as the
case may be.
(4) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article.
Section 610. Merger, Conversion, Consolidation or Succession to
Business.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the bond administration
portion of the corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated but not delivered by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 611. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment, or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
57
Each Authenticating Agent shall be acceptable to the Company and,
except as provided in or pursuant to this Indenture, shall at all times be a
Corporation that would be permitted by the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, 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 the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and 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 (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
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This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
As Trustee
By:
As Authenticating Agent
By:
Authorized Signatory
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series,
at least seven Business Days prior to each Interest Payment Date and
the Stated Maturity Date of such Securities, or upon such other dates
as are set forth in or pursuant to the Board Resolution or indenture
supplemental hereto authorizing such series, a list, in each case in
such form as the Trustee may reasonably require, of the names and
addresses of Holders as of the applicable date, and
(2) 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,
59
provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company, the
Trustee, any Paying Agent or any Security Registrar shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with Section 312(c) of the Trust
Indenture Act, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the Trust Indenture
Act.
Section 703. Reports by Trustee.
(1) Within 60 days after May 15 of each year commencing with the first
May 15 following the first issuance of Securities pursuant to Section 301, if
required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report
dated as of such May 15 with respect to any of the events specified in said
Sections 313(a) and 313(b)(2) which may have occurred since the later of the
immediately preceding May 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(a)
of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
Section 704. Reports by Company and Guarantors.
The Company and each Guarantor, as the case may be, pursuant to Section
314(a) of the Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company or
any Guarantor, as the case may be, is required to file the same with
the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company or any Guarantor may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Company or any
Guarantor, as the case may be, is not required to file information,
documents or reports pursuant to either of said Sections, then it shall
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
60
which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company or any Guarantor, as the case may
be, with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, such summaries of any information, documents
and reports required to be filed by the Company or any Guarantor, as
the case may be, pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time to time
by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not, in any transaction or series of related
transactions, consolidate with or merge into any Person or sell, assign,
transfer, lease or otherwise convey all or substantially all its properties and
assets to any Person, unless:
(1) either (A) the Company shall be the continuing Person (in the case of a
merger), or (B) the successor Person (if other than the Company) formed by such
consolidation or into which the Company is merged or which acquires by sale,
assignment, transfer, lease or other conveyance all or substantially all the
properties and assets of the Company shall be a Corporation organized and
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 (or
indentures, if at such time there is more than one Trustee) supplemental hereto,
executed by such successor Corporation and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of,
any premium and interest on, and any Additional Amounts with respect to, all the
Outstanding Securities and the due and punctual performance and observance of
every obligation in this Indenture and the Outstanding Securities on the part of
the Company to be performed or observed and shall provide for conversion or
exchange rights in accordance with the provisions of the Securities of any
series that are convertible or exchangeable into Common Stock or other
securities;
(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 occurred and be continuing; and
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(3) either the Company or the successor Person shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, sale, assignment, transfer, lease or other
conveyance 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 Person Substituted for Company.
Upon any consolidation by the Company with or merger of the Company
into any other Person or any sale, assignment, transfer, lease or conveyance of
all or substantially all of the properties and assets of the Company to any
Person in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
assignment, transfer, lease or other conveyance is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein; and thereafter, except in the case of a lease, the
predecessor Person shall be released from all obligations and covenants under
this Indenture, the Securities and the Coupons.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the Company,
the Guarantors (when authorized by or pursuant to 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
Guarantor, and the assumption by any such successor of the covenants of the
Company or any Guarantor contained herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power
herein conferred upon the Company;
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of, any
premium or interest on or any Additional Amounts with respect to
Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be exchanged for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated
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form, provided any such action shall not adversely affect the interests of
the Holders of Securities of any series or any Coupons appertaining
thereto;
(4) to establish the form or terms of Securities of any series and any
Coupons appertaining thereto as permitted by Sections 201 and 301;
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 609;
(6) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or 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 adversely affect
the interests of the Holders of Securities of any series then Outstanding
or any Coupons appertaining thereto in any material respect;
(7) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth;
(8) to add any additional Events of Default with respect to all or any
series of Securities (as shall be specified in such supplemental
indenture);
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four, provided
that any such action shall not adversely affect the interests of any Holder
of a Security of such series and any Coupons appertaining thereto or any
other Security or Coupon in any material respect;
(10) to secure the Securities pursuant to Section 1006 or otherwise;
(11) to make provisions with respect to conversion or exchange rights
of Holders of Securities of any series;
(12) to amend or supplement any provision contained herein or in any
supplemental indenture or in any Securities (which amendment or supplement
may apply to one or more series of Securities or to one or more Securities
within any series as specified in such supplemental indenture or
indentures), provided that such amendment or supplement does not apply to
any Outstanding Security issued prior to the date of such supplemental
indenture and entitled to the benefits of such provision; or
(13) to add new Guarantors.
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Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Guarantors, if any, and the Trustee, the Company and the Guarantors (when
authorized by or pursuant to 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 the Securities of such series or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, that no such supplemental indenture, without the
consent of the Holder of each Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or
premium, if any, or any installment of interest, if any, on or any
Additional Amounts, if any, with respect to, any Security, or reduce
the principal amount thereof or the rate (or modify the calculation of
such rate) of interest thereon or any Additional Amounts with respect
thereto, or any premium payable upon the redemption thereof or
otherwise, or change the obligation of the Company to pay Additional
Amounts pursuant to Section 1004, or reduce the amount of the principal
of any Original Issue Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, adversely affect the right of repayment at the option of
any Holder as contemplated by Article Thirteen, or change the Place of
Payment where or the Currency in which the principal of, any premium or
interest on, or any Additional Amounts with respect to any Security 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, in the case of
repayment at the option of the Holder, on or after the date for
repayment), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting, 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) make any change that adversely affects the right, if any,
to convert or exchange any Security for Common Stock or other
securities in accordance with its terms.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with
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respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities 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.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture
Act) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 905. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 906. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 907. Notice of Supplemental Indenture .
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 902, the Company shall transmit to
the Holders of Outstanding Securities of any series affected thereby a notice
setting forth the substance of such supplemental indenture.
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ARTICLE X
COVENANTS
Section 1001. Payment of Principal, Premium, Interest and Additional
Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer Security
on or before the Maturity thereof, and any Additional Amounts payable with
respect to such interest, shall be payable only upon presentation and surrender
of the Coupons appertaining thereto for such interest as they severally mature.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company or Guarantor in respect of the Securities of
such series or any Subsidiary Guarantee relating thereto and this Indenture may
be served. If Securities of a series are issuable as Bearer Securities, the
Company shall maintain, subject to any laws or regulations applicable thereto,
an Office or Agency in a Place of Payment for such series which is located
outside the United States where Securities of such series and any Coupons
appertaining thereto may be presented and surrendered for payment; provided,
however, that if the Securities of such series are listed on the London Stock
Exchange or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the Company
shall maintain a Paying Agent in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of such series are listed on such exchange. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
Office or Agency. If at any time the Company shall fail to maintain any such
required Office or Agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment at the place specified for the purpose with respect
to such Securities as provided in or pursuant to this Indenture, and the Company
and each Guarantor hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of principal
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of, any premium or interest on and any Additional Amounts with respect to any
such Security may be made at the Corporate Trust Office of the Trustee or any
Office or Agency designated by the Company in the Borough of Manhattan, The City
of New York, if (but only if) payment of the full amount of such principal,
premium, interest or Additional Amounts at all offices outside the United States
maintained for such purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other Office or Agency. Unless otherwise provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment for each series
of Securities the Borough of Manhattan, The City of New York, and initially
appoints the Corporate Trust Office of the Trustee as the Company's Office or
Agency in the Borough of Manhattan, The City of New York as the Company's Office
or Agency in the Borough of Manhattan, The City of New York for such purpose and
as Security Registrar. The Company may subsequently appoint a different Office
or Agency in the Borough of Manhattan, The City of New York and a different
Security Registrar for the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on, or any Additional Amounts with respect
to any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency or Currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal or any premium, interest or Additional Amounts so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, or any premium or interest on or any Additional Amounts with respect to any
Securities of such series, deposit with any Paying Agent a sum (in the Currency
or Currencies described in the preceding paragraph) sufficient to pay the
principal or any premium, interest or Additional Amounts so becoming due, such
sum to be held in trust for the benefit of the Persons entitled thereto, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
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The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal
of, any premium or interest on or any Additional Amounts with respect
to Securities of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company or
any Guarantor, if any, (or any other obligor upon the Securities of
such series) in the making of any payment of principal, any premium or
interest on or any Additional Amounts with respect to the Securities of
such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms 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 sums.
Except as otherwise provided herein or pursuant hereto, 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, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or such premium or interest or Additional Amount shall have become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security or
any Coupon appertaining thereto 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, not later than 60 days after the Company's request for such
repayment, at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment for such series or to be mailed to
Holders of Registered Securities of such series, or both, 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 or mailing nor shall it be
later than two years after such principal and any premium or interest or
Additional Amounts shall have become due and payable, any unclaimed balance of
such money then remaining will be repaid to the Company.
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Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of any series, if the Securities of a series provide for the payment
of Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to such series of Securities (or if the Securities of such series
shall not bear interest prior to Maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of
principal or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company shall
furnish to the Trustee and the principal Paying Agent or Paying Agents, if other
than the Trustee, an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and premium,
if any, or interest, if any, on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons, and the Company
agrees to pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
Section 1005. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) the corporate
existence of the Company, (ii) the existence (corporate or other) of Subsidiary
of the Company and (iii) the rights (charter and statutory), licenses and
franchises of the Company and each of its Subsidiaries; provided, however, that
the Company shall not be required to preserve the existence (corporate or other)
of any of its Subsidiaries or any such right, license or franchise of the
Company or of its Subsidiaries if the Board of Directors of the Company
determines that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Subsidiaries taken as a whole and that
the loss thereof is not disadvantageous in any material respect to the Holders.
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Section 1006. Limitation on Liens.
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly create, incur, assume, guarantee or otherwise become
liable for any Debt secured by a Lien on any Principal Property or by a Lien on
any Debt or shares of capital stock of, or other ownership interests in, any
Restricted Subsidiary ("Secured Debt") (whether such Principal Property, Debt,
shares of capital stock or ownership interests are owned or outstanding at the
date of the indenture or thereafter acquired or issued, as the case may be) if,
immediately after giving effect thereto, the sum, without duplication, of (a)
the aggregate principal amount of all Secured Debt (other than Excluded Debt (as
defined below)) and (b) the aggregate amount of all Attributable Debt in respect
of Sale and Leaseback Transactions (other than Excluded Transactions (as defined
below)) would exceed 10% of the Company's Consolidated Net Tangible Assets as of
the date of determination, unless the Company provides, concurrently with or
prior to the creation, incurrence, assumption or guarantee of such Secured Debt,
that the securities, including the notes, shall be secured equally and ratably
with (or, at the option of the Company, prior to) such Secured Debt (but only
for so long as such Secured Debt is so secured).
The provisions set forth in the immediately preceding paragraph shall
not apply to Debt secured by the following Liens ("Excluded Debt"):
(1) Liens existing as of the date of the indenture;
(2) Liens on any Principal Property, Debt, shares of capital
stock or other ownership interests existing at the time of acquisition
thereof (whether by merger, consolidation, acquisition of stock or
assets or otherwise) by the Company or any of the Company's
Subsidiaries;
(3) Liens upon or with respect to any Principal Property
acquired, constructed or improved by the Company or any of the
Company's Subsidiaries after the date of the indenture which (A) are
created, incurred or assumed contemporaneously with, or within 360 days
after, the latest to occur of the acquisition (whether by merger,
consolidation, acquisition of stock or assets or otherwise), or the
completion of construction or improvement, as the case may be, of such
Principal Property, and (B) secure Debt incurred or assumed to finance
all or any part of the purchase price of such Principal Property or the
cost of such construction or improvement, as the case may be, provided
that such Liens are limited to the Principal Property so acquired,
constructed or improved and the amount of such Debt does not exceed the
purchase price of such acquisition (determined as of the date of such
acquisition) or the cost of such construction or improvement
(determined as of the date of completion of such construction or
improvement), as the case may be, and provided, further, that for
purposes of this clause (3), the date of acquisition of any Principal
Property acquired by merger, consolidation or acquisition of stock
shall be the effective date of such merger or consolidation or the date
such stock acquisition is completed, as the case may be;
(4) Liens originally entered into by a Person other than the
Company or one of the Company's Subsidiaries and existing at the time
such Person was acquired by the Company
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or any of the Company's Subsidiaries (whether by merger,
consolidation, acquisition of stock or otherwise);
(5) Liens on the property of any Subsidiary securing Debt owing
by such Subsidiary to the Company or to any other Subsidiary;
(6) Liens in favor of governmental bodies to secure advance or
progress payments pursuant to any contract or statute and Liens in
favor of governmental bodies incurred in connection with industrial
revenue, pollution control, private activity bond or similar
financing;
(7) Liens or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(8) Liens for taxes, governmental assessments or similar
governmental charges or levies not yet due or delinquent, or which can
thereafter be paid without penalty or which are being contested by the
Company in good faith and by appropriate action;
(9) statutory liens and landlords', carriers', workers',
warehousemen's, mechanics', suppliers', materialmen's, repairmen's and
other similar Liens arising by operation of law in the ordinary course
of business and with respect to amounts not yet delinquent or which
are being contested by the Company in good faith and by appropriate
action;
(10) Liens or deposits to secure (a) performance in connection
with bids, tenders, contracts or leases to which the Company or a
Subsidiary is a party and which Liens and deposits do not secure Debt
or (b) surety, stay, appeal, indemnity, customs or performance bonds
which do not involve Debt;
(11) easements, exceptions, reservations or similar encumbrances
on real property that do not materially interfere with the operation
of such property or impair the value of such property for the purposes
for which such property is or may reasonably be expected to be used by
the Company or the Company's Subsidiaries;
(12) Liens created in connection with a project financed with,
and created to secure indebtedness or lease obligations substantially
related to (a) the acquisition of assets not previously owned by the
Company or any Subsidiary, or (b) the financing of a project involving
the development or expansion of the Company's properties or properties
of any Subsidiary, as to which the obligee with respect to such
indebtedness or obligation has no recourse to the Company or any
Subsidiary or any of the Company's assets or any assets of any
Subsidiary other than the assets which were acquired with the proceeds
of such transaction or the project financed with the proceeds of such
transaction (and the proceeds thereof); and
(13) Liens for the sole purpose of extending, renewing or
replacing in whole or in part the Debt secured thereby referred to in
the foregoing clauses (1) through (12), inclusive,
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or in this clause (13); provided, however, that the Debt excluded
pursuant to this clause (13) shall be excluded only in an amount not to
exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement (together with any premium, fees or
expenses (other than interest) payable in connection with any such
replacement, extension or renewal), and that such extension, renewal or
replacement shall be limited to all or a part of the Principal
Property, Debt, shares of capital stock or other ownership interests,
as the case may be, subject to the Lien so extended, renewed or
replaced.
Section 1007. Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any of the Company's
Restricted Subsidiaries to directly or indirectly, enter into, assume, guarantee
or otherwise become liable with respect to any Sale and Leaseback Transaction
involving any Principal Property or portion thereof (whether such Principal
Property is owned at the date of the indenture or thereafter acquired), if,
immediately after giving effect thereto, the sum, without duplication, of (a)
the aggregate principal amount of all Secured Debt (other than Excluded Debt)
and (b) the aggregate amount of all Attributable Debt in respect of Sale and
Leaseback Transactions (other than Excluded Transactions) would exceed 10% of
the Company's Consolidated Net Tangible Assets as of the date of determination.
The provisions set forth in the immediately preceding paragraph shall
not apply to any Sale and Leaseback Transaction (an "Excluded Transaction") if:
(1) within 180 days from the date of the sale of the Principal
Property (or portion thereof) involved in such Sale and Leaseback
Transaction, the Company or such Subsidiary applies an amount not less
than the net proceeds of the sale of the Principal Property (or
portion thereof) sold pursuant to such Sale and Leaseback Transaction
and to retire (other than pursuant to a payment at maturity, a
mandatory sinking fund payment or any other mandatory repurchase,
redemption, prepayment or retirement) Funded Debt of the Company or
any Subsidiary (other than Funded Debt held by the Company or any
Subsidiary of the Company and Funded Debt of the Company which is
subordinate in right of payment to the securities), or to purchase
other property having a fair value (as determined by the Board of
Directors by Board Resolution) at least equal to the net proceeds of
the sale (as determined by the Board of Directors by Board Resolution)
of the Principal Property (or portion thereof) sold in such Sale and
Leaseback Transaction and which other property constitutes a Principal
Property (or portion thereof);
(2) such Sale and Leaseback Transaction occurs within 360 days
after the latest to occur of the date of acquisition (whether by
merger, consolidation, acquisition of stock or assets or otherwise) by
the Company or such Subsidiary or the completion of construction of
the Principal Property (or portion thereof) sold pursuant to such
transaction;
(3) such Sale and Leaseback Transaction is between the Company
and any Subsidiary or between any Subsidiaries;
(4) at the time such Sale and Leaseback Transaction is entered
into, the term of the related lease (including any renewals thereof as
the option of the lessor or the lessee) to
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the Company or such Subsidiary of the Principal Property (or portion
thereof) sold pursuant to such transaction is three years or less;
(5) such Sale and Leaseback Transaction is a transaction in which
the relevant Principal Property (or portion thereof) is sold to and
leased back from a government or governmental body in connection with
industrial revenue, pollution control, private activity bond or
similar financing;
(6) such Sale and Leaseback Transaction was entered into by the
Company or one of the Company's Subsidiaries prior to the date of the
indenture;
(7) in the case of a Sale and Leaseback Transaction originally
entered into by a Person other than the Company or one of the
Company's Subsidiaries, such Sale and Leaseback Transaction was
existing at the time such Person was acquired by the Company or any of
the Company's Subsidiaries (whether by merger, consolidation,
acquisition of stock or otherwise); or
(8) such Sale and Leaseback Transaction is for the sole purpose
of extending, renewing or replacing in whole or in part the Liens
referred to in the clauses (1), (2) and (3) under "Covenants of the
Company -- Limitations on Liens" provided, however, that the net
proceeds of the sale of the Principal Property sold pursuant to such
Sale and Leaseback Transaction excluded pursuant to this clause (10)
shall be excluded only in an amount not to exceed the principal amount
of Debt so secured by such Liens at the time of such extension,
renewal or replacement (together with any premium, fee or expenses
(other than interest) payable in connection with any such replacement,
extension or renewal), and that such extension, renewal or replacement
shall be limited to all or a part of the Principal Property, Debt,
shares of capital stock or other ownership interests, as the case may
be, subject to the Liens so extended, renewed or replaced.
Section 1008. Maintenance of Properties.
The Company will, and will cause each Restricted Subsidiary to, cause
all its properties used or useful in the conduct of its business 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 or any
Restricted Subsidiary from discontinuing the operation and maintenance of any of
their respective properties if such discontinuance is, in the judgment of the
Board of Directors of the Company or of any Restricted Subsidiary, as the case
may be, desirable in the conduct of its business.
Section 1009. Payment of Taxes and Other Claims.
The Company will, and will cause each Restricted Subsidiary to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all material taxes, assessments and governmental charges levied
or imposed upon it or upon its income, profits or property, and
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(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon its property; provided, however, that neither the
Company nor any Restricted Subsidiary shall be required to pay or discharge or
cause to be paid or discharged any such material tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate action.
Section 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1002 to 1009, inclusive, with
respect to the Securities of any series and, if expressly provided pursuant to
Section 301(18), any additional covenants applicable to the Securities of such
series if before the time for such compliance the Holders of at least a majority
in principal amount of the Outstanding Securities of such series, by Act of such
Holders, either shall waive such compliance in such instance or generally shall
have waived compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
Section 1011. Company Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement (which need not be contained in or
accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company and the Guarantors, stating whether or not, to the best of his or
her knowledge, the Company and each of the Guarantors are in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture and if the Company and each of the Guarantors shall be in
default, specifying all such defaults and the nature and status thereof of which
he or she may have knowledge.
Section 1012. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
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Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of less than all of the Securities of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed and, in the event that the Company shall determine
that the Securities of any series to be redeemed shall be selected from
Securities of such series having the same issue date, interest rate or interest
rate formula, Stated Maturity and other terms (the "Equivalent Terms"), the
Company shall notify the Trustee of such Equivalent Terms.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series are to be redeemed or
if less than all of the Securities of any series with Equivalent Terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series or from the Outstanding Securities of such series with
Equivalent Terms, as the case may be, not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions of the principal amount of
Registered Securities of such series; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted or exchanged for Common Stock or other securities in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted or exchanged portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted or exchanged during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for the
purpose of such selection.
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Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the Holder of
such Security will receive, without charge, a new Security or
Securities of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Security or portion thereof to
be redeemed, and, if applicable, that interest thereon shall cease to
accrue on and after said date,
(6) the place or places where such Securities, together (in the
case of Bearer Securities) with all Coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and any accrued interest and
Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified, in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing Coupon or Coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is
furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be
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exchanged for Registered Securities not subject to redemption on the
Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(10) in the case of Securities of any series that are
convertible or exchangeable into Common Stock or other securities, the
conversion or exchange price or rate, the date or dates on which the
right to convert or exchange the principal of the Securities of such
series to be redeemed will commence or terminate, as applicable, and
the place or places where such Securities may be surrendered for
conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference
numbers of such Securities, if any (or any other numbers used by a
Depository to identify such Securities).
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 1104, with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the applicable Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date, unless otherwise specified pursuant to Section 301 for or in the
Securities of such series) any accrued interest on and Additional Amounts with
respect thereto, all such Securities or portions thereof which are to be
redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities shall cease to bear interest and the Coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
Coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with,
unless otherwise provided in or pursuant to this Indenture, any accrued and
unpaid interest thereon and Additional Amounts with respect thereto to but
excluding the Redemption Date; provided, however, that, except as otherwise
provided in or pursuant to this Indenture or the Bearer Securities of such
series, installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable only upon presentation and
surrender of Coupons for such interest (at an Office or Agency located outside
the United States except as otherwise provided in Section 1002), and
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provided, further, that, except as otherwise specified in or pursuant to this
Indenture or the Registered Securities of such series, installments of interest
on Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price or, at the option
of the Company, after payment to the Trustee for the benefit of the Company of,
an amount equal to the face amount of all such missing Coupons, or the surrender
of such missing Coupon or Coupons may be waived by the Company and the Trustee
if there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that any interest or Additional Amounts represented
by Coupons shall be payable only upon presentation and surrender of those
Coupons at an Office or Agency for such Security located outside of the United
States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall 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 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute, if applicable, the Guarantors shall execute the Subsidiary Guarantee
endorsed thereon and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Registered Security or Securities of
the same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the Depository for
such Security in global form as shall be specified in the Company Order with
respect thereto to the Trustee, without service charge, a new Security in global
form in a denomination equal to and in exchange for the unredeemed portion of
the principal of the Security in global form so surrendered.
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ARTICLE XII
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly. If as a result of the delivery or credit of Securities
of any series in lieu of cash payments pursuant to this Section 1202, the
principal amount of Securities of such series to be redeemed in order to exhaust
the aforesaid cash payment shall be less than $100,000, the Trustee need not
call Securities of such series for redemption, except upon Company Request, and
such cash payment shall be held by the Trustee or a Paying Agent and applied to
the next succeeding sinking fund payment, provided, however, that the Trustee or
such Paying Agent shall at the request of the Company from time to time pay over
and deliver to the Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Company to the Trustee of Securities of that
series purchased by the Company having an unpaid principal amount equal to the
cash payment requested to be released to the Company.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the
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portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE XIII
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 1301, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
ARTICLE XIV
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article.
Whenever this Indenture provides for any distribution to Holders of
Securities of any series in which not all of such Securities are denominated in
the same Currency, in the absence of any provision to the contrary in or
pursuant to this Indenture or the Securities of such series, any amount
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in respect of any Security denominated in a Currency other than Dollars shall be
treated for any such distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and as of the
record date with respect to Registered Securities of such series (if any) for
such distribution (or, if there shall be no applicable record date, such other
date reasonably proximate to the date of such distribution) as the Company may
specify in a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 1502. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1501, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of or made the first publication of the notice of such meeting within 21
days after receipt of such request (whichever shall be required pursuant to
Section 106) or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or, if Securities of
such series are to be issued as Bearer Securities, in London for such meeting
and may call such meeting for such purposes by giving notice thereof as provided
in clause (1) of this Section.
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Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66-2/3% in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other case
the meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1502(1), 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, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of at least 66-2/3% in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of at least 66-2/3% in principal
amount of the Outstanding Securities of that series; and provided, further,
that, except as limited by the proviso to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
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Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(1) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(2), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series 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. If
the Securities of such series are issuable in minimum denominations of less than
$1,000, then a Holder of such a Security in a principal amount of less than
$1,000 shall be entitled to a fraction of one vote which is equal to the
fraction that the principal amount of such Security bears to $1,000. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
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Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE XVI
SUBSIDIARY GUARANTEE
Section 1601. Applicability of Article.
Unless the Company elects to issue any series of Securities without the
benefit of the Subsidiary Guarantees, which election shall be evidenced in or
pursuant to the Board Resolution or supplemental indenture establishing such
series of Securities pursuant to Section 301, the provisions of this Article
shall be applicable to each series of Securities except as otherwise specified
in or pursuant to the Board Resolution or supplemental indenture establishing
such series pursuant to Section 301.
Section 1602. Subsidiary Guarantee.
Subject to Section 1601, each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, to each Holder of a Security authenticated and delivered by
the Trustees and to the Trustee (a) the due and punctual payment by the Company
of (i) the principal of and premium, if any, and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether such interest is allowed or
allowable as a claim in such proceeding) on such Security, when and as due,
whether at Maturity, by acceleration, upon one or more dates set for prepayment
or otherwise and (ii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether such monetary obligations are allowed or allowable as a claim in
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such proceeding), of the Company to the Holders or the Trustee under this
Indenture and the Securities, (b) the due and punctual performance of all
covenants, agreements, obligations and liabilities of the Company under or
pursuant to this Indenture and the Securities and (c) the due and punctual
payment and performance of all the covenants, agreements, obligations and
liabilities of each other Guarantor under or pursuant to this Indenture and the
Securities (all the monetary and other obligations described in the preceding
clauses (a) through (c) being collectively called the "Guaranteed Obligations").
Each Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice to or further assent from it, and
that it will remain bound upon the Subsidiary Guarantee notwithstanding any
extension or renewal of any obligation.
Anything contained in this Indenture to the contrary notwithstanding,
the obligations of each Guarantor under this Indenture, the Securities and any
Subsidiary Guarantees shall be limited to a maximum aggregate amount equal to
the greatest amount that would not render such Guarantor's obligations hereunder
subject to avoidance as a fraudulent transfer or conveyance under Section 548 of
Title 11 of the United States Code or any provisions of applicable state law
(collectively, the "Fraudulent Transfer Laws"), in each case after giving effect
to all other liabilities of such Guarantor, contingent or otherwise, that are
relevant under the Fraudulent Transfer Laws (specifically excluding, however,
any liabilities of such Guarantor (a) in respect of intercompany indebtedness to
the Company or Affiliates of the Company to the extent that such indebtedness
would be discharged in an amount equal to the amount paid by such Guarantor
hereunder and (b) under any guarantee of senior unsecured indebtedness or
indebtedness subordinated in right of payment to the Guaranteed Obligations,
which guarantee contains a limitation as to maximum amount similar to that set
forth in this paragraph, pursuant to which the liability of such Guarantor
hereunder is included in the liabilities taken into account in determining such
maximum amount) and after giving effect as assets to the value (as determined
under the applicable provisions of the Fraudulent Transfer Laws) of any rights
to subrogation, contribution, reimbursement, indemnity or similar rights of such
Guarantor pursuant to (i) applicable law or (ii) any agreement providing for an
equitable allocation among such Guarantor and other Affiliates of the Company of
obligations arising under the Subsidiary Guarantees by such parties.
To the fullest extent permitted by applicable law, each Guarantor
waives presentment to, demand of payment from and protest to the Company of any
of the Guaranteed Obligations, and also waives notice of acceptance of the
Subsidiary Guarantee and notice of protest for nonpayment. To the fullest extent
permitted by applicable law and except as otherwise contemplated herein, the
obligations of each Guarantor under this Indenture, the Securities and any
Subsidiary Guarantees shall not be affected by (a) the failure of the Trustee or
the Holders to assert any claim or demand or to enforce or exercise any right or
remedy against the Company or any other Guarantor under this Indenture, the
Securities, any Subsidiary Guarantees or otherwise or (b) any rescission,
waiver, amendment or modification of, or any release from any of the terms or
provisions of this Indenture, the Securities, any Subsidiary Guarantees or any
other agreement, including with respect to any other Guarantor under this
Indenture.
Each Guarantor further agrees that the Subsidiary Guarantee constitutes
a guarantee of payment when due and not of collection, and waives any right to
require that any resort be had by the Trustee or the Holders to any of the
security held for payment of the Guaranteed Obligations or to
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any balance of any deposit account or credit on the books of the Trustee or the
Holders in favor of the Company or any other Person.
The obligations of each Guarantor shall not be subject to any
reduction, limitation, impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Guaranteed Obligations), including
any claim or waiver, release, surrender, alteration or compromise of any of the
Guaranteed Obligations, and shall not be subject to any defense or set-off,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Guaranteed Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of each
Guarantor shall not be discharged or impaired or otherwise affected by the
failure of the Trustee or the Holders to assert any claim or demand or to
enforce any remedy under this Indenture, the Securities or any other agreement,
by any waiver or modification of any provision of any thereof, by any default,
failure or delay, willful or otherwise, in the performance of the Guaranteed
Obligations, or by any other act or omission that may or might in any manner or
to any extent vary the risk of any Guarantor or that would otherwise operate as
a discharge of each Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Guaranteed Obligations) or which
would impair or eliminate any right of such Guarantor to subrogation.
To the fullest extent permitted by applicable law, each of the
Guarantors waives any defense based on or arising out of any defense of the
Company or the unenforceability of the Guaranteed Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of the
Company, other than the indefeasible payment in full in cash of all the
Guaranteed Obligations. The Trustee and the Holders may, at their election,
compromise or adjust any part of the Guaranteed Obligations, make any other
accommodation with the Company or any other Guarantor or exercise any other
right or remedy available to them against the Company or any other Guarantor,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent that all the Guaranteed Obligations have been
indefeasibly paid in full in cash. Pursuant to applicable law, each of the
Guarantors waives any defense arising out of any such election even though such
election operates, pursuant to applicable law, to impair or to extinguish any
right of reimbursement or subrogation or other right or remedy of such Guarantor
against the Company or any other Guarantor.
In furtherance of the foregoing and not in limitation of any other
right that the Trustee or any of the Holders has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Company or any other
Guarantor to pay any Guaranteed Obligation when and as the same shall become
due, whether at Maturity, by acceleration, after notice of prepayment or
otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to
be paid, to the Trustee or the Holders, as the case may be, in cash the amount
of such unpaid Guaranteed Obligations. Upon payment by any Guarantor of any sums
to the Trustee or any Holder, as the case may be, as provided above, all rights
of such Guarantor against the Company arising as a result thereof by way of
right of subrogation, contribution, reimbursement, indemnity or otherwise shall
in all respect be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Guaranteed Obligations. In
addition, any indebtedness of the Company now or hereafter held by any Guarantor
is hereby subordinated in right of payment to the prior payment in full in cash
of the Guaranteed Obligations. If any amount shall erroneously be paid to any
Guarantor on account of (a) such subrogation, contribution, reimbursement,
indemnity or similar right or (b) any such indebtedness of
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the Company, such amount shall be held in trust for the benefit of the Holders
and shall forthwith be paid to the Trustee or the Holders, as the case may be,
to be credited against the payment of the Guaranteed Obligations, whether
matured or unmatured, in accordance with the terms of this Indenture and the
Securities.
Each of the Guarantors assumes all responsibility for being and keeping
itself informed of the Company's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks that such Guarantor
assumes and incurs, and agrees that neither the Trustee nor the Holders will
have any duty to advise any of the Guarantors of information known to it or any
of them regarding such circumstances or risks.
Each Guarantor that makes or is required to make any payment in respect
of its Subsidiary Guarantee shall be entitled to seek contribution from the
other Guarantors to the extent permitted by applicable law and as determined
otherwise.
Section 1603. 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 1602 and any
other terms that may be set forth in the form established pursuant to Section
204. Subject to Section 1601, each of the Guarantors hereby agrees to execute
its Subsidiary Guarantee, in a form established pursuant to Section 204, to be
endorsed on each Security authenticated and delivered by the Trustee.
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 Guarantors and shall bind each Guarantor
notwithstanding the fact that Subsidiary Guarantee does not bear the signature
of such Guarantor. Each of the Guarantors hereby jointly and severally agrees
that its Subsidiary Guarantee set forth in Section 1602 and in the form of
Subsidiary Guarantee established pursuant to Section 204 shall remain in full
force and effect notwithstanding any failure to endorse a Subsidiary Guarantee
on any Security.
Section 1604. Release of Guarantors.
Unless otherwise specified pursuant to Section 301 with respect to a
series of Securities, each Subsidiary Guarantee will remain in effect with
respect to the respective Guarantor until the entire principal of, premium, if
any, and interest on the Securities to which such Subsidiary Guarantee relates
shall have been paid in full or otherwise discharged in accordance with the
provisions of such Securities and this Indenture and all amounts owing to the
Trustee hereunder have been paid; provided, however, that if (i) the Company or
any Subsidiary conveys, sells, assigns, transfers o otherwise disposes of all or
substantially all the capital stock or assets of any Subsidiary that is a
Guarantor to one or more Persons other than Affiliates of the Company in a
transaction complying with the requirements of this Indenture, or (ii) the
Securities are defeased and discharged in pursuant to Article Four hereof, then,
in each case of (i) or (ii), upon delivery by the Company of an Officers'
Certificate and an Opinion of Counsel stating that all conditions precedent
herein provided for relating to the release of such Guarantor from its
obligations under its Subsidiary Guarantee and this Article Sixteen have been
complied with, such Guarantor or the Person acquiring such assets (in the event
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of a sale or other disposition of all or substantially all assets or capital
stock of such Guarantor) shall be released and discharged of its obligations
under its Subsidiary Guarantee and under this Article Sixteen 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
Guarantor from its obligations under its Subsidiary Guarantee endorsed on the
Securities of a series and under this Article Sixteen.
In the event of any consolidation by the Company with or merger of the
Company into any other Person or an sale, assignment, transfer, lease or
conveyance of all or substantially all of the properties and assets of the
Company to any Person in accordance with this Indenture, no subsidiary of the
successor Person formed by such consolidation or into which the Company is
merged or to which such sale, assignment, transfer, lease or other conveyance is
made will be required to assume any obligations of the Guarantors under this
Indenture, the Securities or the Subsidiary Guarantees if such successor Person
(i) has, at the time of such transaction, a long- term unsecured debt rating
from both Xxxxx'x Investors Services, Inc. and Standard & Poor's Rating Services
no lower than the lowest rating than assigned by either such rating agency to
such indebtedness of the Company and (ii) any long-term unsecured debt of the
successor person generally does not have the benefit of any guarantees similar
to the Subsidiary Guarantees of the Guarantors.
Section 1605. Additional Guarantors.
Unless otherwise specified pursuant to Section 301 with respect to a
series of Securities, each Significant Subsidiary that was not in existence (or
not a Significant Subsidiary) on the date the Securities of a series are first
issued hereunder shall become a Guarantor promptly upon becoming such a
Significant Subsidiary. The Company shall cause any such Significant Subsidiary
to become a Guarantor with respect to the Securities by executing and delivering
to the Trustee (i) a supplemental indenture, in form and substance satisfactory
to the Trustee, which subjects such Person to the provisions (including the
representations and warranties) of this Indenture as a Guarantor and (ii) an
Opinion of Counsel to the effect that such supplemental indenture has been duly
authorized and executed by such Person and such supplemental indenture and such
Person's obligations under its Subsidiary Guarantee and this Indenture
constitute the legal, valid, binding and enforceable obligations of such Person
(subject to such customary exceptions concerning creditors' rights and equitable
principles as may be acceptable to the Trustee in its discretion).
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and the Company has caused its corporate seal to be hereunto
affixed, all as of the day and year first above written.
XXXX-XXXXX STORES, INC.
as Issuer
By:
Name:
Title:
[SEAL]
Attest:
Name:
Title:
ASTOR PRODUCTS, INC.
as Guarantor
By:
Name:
Title:
CRACKIN' GOOD, INC.
as Guarantor
By:
Name:
Title:
89
DEEP SOUTH PRODUCTS, INC.
as Guarantor
By:
Name:
Title:
XXXXX PACKERS, INC.
as Guarantor
By:
Name:
Title:
MONTEREY CANNING CO.
as Guarantor
By:
Name:
Title:
XXXX-XXXXX CHARLOTTE, INC.
as Guarantor
By:
Name:
Title:
XXXX-XXXXX LOGISTICS, INC.
as Guarantor
By:
Name:
Title:
90
XXXX-XXXXX LOUISIANA, INC.
as Guarantor
By:
Name:
Title:
XXXX-XXXXX XXXXXXXXXX, INC.
as Guarantor
By:
Name:
Title:
XXXX-XXXXX PROCUREMENT, INC.
as Guarantor
By:
Name:
Title:
XXXX-XXXXX XXXXXXX, INC.
as Guarantor
By:
Name:
Title:
91
FIRST UNION NATIONAL BANK,
as Trustee
By:
Name:
Title:
92
SCHEDULE 1
Guarantors
SUBSIDIARY STATE OF ORGANIZATION
Astor Products, Inc. Florida
Crackin' Good, Inc. Florida
Deep South Products, Inc. Florida
Xxxxx Packers, Inc. Florida
Monterey Canning Co. California
Xxxx-Xxxxx Xxxxxxxxx, Inc. Florida
Xxxx-Xxxxx Logistics, Inc. Florida
Xxxx-Xxxxx Louisiana, Inc. Florida
Xxxx-Xxxxx Xxxxxxxxxx, Inc. Florida
Xxxx-Xxxxx Procurement, Inc. Florida
Xxxx-Xxxxx Xxxxxxx, Inc. Florida
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