EXHIBIT 4.2
THE LUBRIZOL CORPORATION,
Issuer
and
THE SUBSIDIARY GUARANTORS PARTIES HERETO
to
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
Trustee
---------------
INDENTURE
----------------
Dated as of _____, 2004
Senior Debt Securities
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
--------------- -----------------
Section 310(a)(1)................................................... 6.7
(a)(2).......................................................... 6.7
(b)............................................................. 6.8
Section 312(a)...................................................... 7.1
(b)............... ............................................. 7.2
(c)............................................................. 7.2
Section 313(a)...................................................... 7.3
(b)(2).......................................................... 7.3
(c) .......................................................... 7.3
(d) .......................................................... 7.3
Section 314(a)...................................................... 7.4
(c)(1).......................................................... 1.2
(c)(2).......................................................... 1.2
(e)............................................................. 1.2
(f)............................................................. 1.2
Section 316(a) (last sentence).. ................................... 1.1
(a)(1)(A)....................................................... 5.2, 5.12
(a)(1)(B)....................................................... 5.13
(b)............................................................. 5.8
Section 317(a)(1)................................................... 5.3
(a)(2).......................................................... 5.4
(b)............................................................. 10.3
Section 318(a)...................................................... 10.8
-----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions............................................................... 1
Act....................................................................... 2
Additional Amounts........................................................ 2
Affiliate................................................................. 2
Attributable Debt......................................................... 2
Authenticating Agent...................................................... 3
Authorized Newspaper...................................................... 3
Authorized Officer........................................................ 3
Bearer Security........................................................... 3
Board of Directors........................................................ 3
Board Resolution.......................................................... 3
Business Day.............................................................. 3
Capital Stock............................................................. 3
Capitalized Lease Obligation.............................................. 3
Commission................................................................ 4
Common Stock.............................................................. 4
Company................................................................... 4
Company Request........................................................... 4
Company Order............................................................. 4
Consolidated Net Tangible Assets.......................................... 4
Conversion Event.......................................................... 5
Corporate Trust Office.................................................... 5
Corporation............................................................... 5
Coupon.................................................................... 5
Credit Agreement.......................................................... 5
Currency.................................................................. 5
CUSIP number.............................................................. 5
Debt...................................................................... 5
Indebtedness.............................................................. 5
Defaulted Interest........................................................ 6
Dollars................................................................... 6
$......................................................................... 6
Event of Default.......................................................... 6
Fair Market Value......................................................... 6
Foreign Currency.......................................................... 6
Funded Debt............................................................... 6
Government Obligations.................................................... 6
Guarantee................................................................. 7
Guarantees................................................................ 7
Guarantor................................................................. 7
Guarantors................................................................ 7
i
Guarantors' Board of Directors............................................ 7
Guarantors' Board Resolution.............................................. 7
Guarantors' Officer's Certificate......................................... 7
Guarantors' Request....................................................... 7
Guarantors' Order......................................................... 7
Holder.................................................................... 7
Indenture................................................................. 8
Independent Public Accountants............................................ 8
Indexed Security.......................................................... 8
Interest.................................................................. 8
Interest Payment Date..................................................... 8
Issue Date................................................................ 8
Judgment Currency......................................................... 8
Lien...................................................................... 8
Maturity.................................................................. 8
New York Banking Day...................................................... 8
Obligations............................................................... 8
Office.................................................................... 8
Agency.................................................................... 8
Officer's Certificate..................................................... 9
Opinion of Counsel........................................................ 9
Original Issue Discount Security.......................................... 9
Outstanding............................................................... 9
Paying Agent.............................................................. 10
Person.................................................................... 10
Place of Payment.......................................................... 10
Predecessor Security...................................................... 10
Preferred Stock........................................................... 11
Redemption Date........................................................... 11
Redemption Price.......................................................... 11
Registered Security....................................................... 11
Regular Record Date....................................................... 11
Required Currency......................................................... 11
Responsible Officer....................................................... 11
Restricted Subsidiary..................................................... 11
Security.................................................................. 11
Securities................................................................ 11
Security Register......................................................... 11
Security Registrar........................................................ 11
Special Record Date....................................................... 12
Stated Maturity........................................................... 12
Subsidiary................................................................ 12
Trust Indenture Act....................................................... 12
Trustee................................................................... 00
Xxxxxx Xxxxxx............................................................. 00
Xxxxxx Xxxxxx Alien....................................................... 12
ii
U.S. Depository........................................................... 12
Depository................................................................ 12
Vice President............................................................ 13
Wholly Owned Subsidiary................................................... 13
Section 1.2. Compliance Certificates and Opinions...................................... 13
Section 1.3. Form of Documents Delivered to Trustee.................................... 13
Section 1.4. Acts of Holders........................................................... 14
Section 1.5. Notices, Etc. to Trustee, Company and any Guarantors...................... 16
Section 1.6. Notice to Holders of Securities; Waiver................................... 16
Section 1.7. Language of Notices....................................................... 17
Section 1.8. Conflict with Trust Indenture Act......................................... 18
Section 1.9. Effect of Headings and Table of Contents.................................. 18
Section 1.10. Successors and Assigns.................................................... 18
Section 1.11. Separability Clause....................................................... 18
Section 1.12. Benefits of Indenture..................................................... 18
Section 1.13. Governing Law............................................................. 18
Section 1.14. Legal Holidays............................................................ 18
Section 1.15. Counterparts.............................................................. 19
Section 1.16. Judgment Currency......................................................... 19
Section 1.17. No Security Interest Created.............................................. 19
Section 1.18. Limitation on Individual Liability........................................ 19
Section 1.19. Submission to Jurisdiction................................................ 20
ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally........................................................... 21
Section 2.2. Form of Trustee's Certificate of Authentication........................... 21
Section 2.3. Securities in Global Form................................................. 22
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series...................................... 22
Section 3.2. Currency; Denominations................................................... 26
Section 3.3. Execution, Authentication, Delivery and Dating............................ 26
Section 3.4. Temporary Securities...................................................... 28
Section 3.5. Registration, Transfer and Exchange....................................... 29
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.......................... 32
Section 3.7. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts Preserved............... 33
Section 3.8. Persons Deemed Owners..................................................... 35
Section 3.9. Cancellation.............................................................. 36
Section 3.10. Computation of Interest................................................... 36
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge................................................ 36
iii
Section 4.2. Defeasance and Covenant Defeasance........................................ 38
Section 4.3. Application of Trust Money................................................ 42
ARTICLE 5
REMEDIES
Section 5.1. Events of Default......................................................... 42
Section 5.2. Acceleration of Maturity; Rescission and Annulment........................ 45
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee........... 46
Section 5.4. Trustee May File Proofs of Claim.......................................... 46
Section 5.5. Trustee May Enforce Claims without Possession of Securities or Coupons.... 47
Section 5.6. Application of Money Collected............................................ 48
Section 5.7. Limitations on Suits...................................................... 48
Section 5.8. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts.................................. 49
Section 5.9. Restoration of Rights and Remedies........................................ 49
Section 5.10. Rights and Remedies Cumulative............................................ 49
Section 5.11. Delay or Omission Not Waiver.............................................. 49
Section 5.12. Control by Holders of Securities.......................................... 50
Section 5.13. Waiver of Past Defaults................................................... 50
Section 5.14. Waiver of Usury, Stay or Extension Laws................................... 50
Section 5.15. Undertaking for Costs..................................................... 51
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee................................................. 51
Section 6.2. Notice of Defaults........................................................ 52
Section 6.3. Not Responsible for Recitals or Issuance of Securities.................... 53
Section 6.4. May Hold Securities....................................................... 53
Section 6.5. Money Held in Trust....................................................... 53
Section 6.6. Compensation and Reimbursement............................................ 53
Section 6.7. Corporate Trustee Required; Eligibility................................... 54
Section 6.8. Resignation and Removal; Appointment of Successor......................... 55
Section 6.9. Acceptance of Appointment by Successor.................................... 56
Section 6.10. Merger, Conversion, Consolidation or Succession to Business............... 58
Section 6.11. Appointment of Authenticating Agent....................................... 58
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTORS AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders................. 60
Section 7.2. Preservation of Information; Communications to Holder..................... 60
Section 7.3. Reports by Trustee........................................................ 60
Section 7.4. Reports by Company and the Guarantors..................................... 61
iv
ARTICLE 8
CONSOLIDATION, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms...................... 61
Section 8.2. Successor Person Substituted for Company.................................. 62
Section 8.3. Guarantors May Consolidate, Etc., Only on Certain Terms................... 63
Section 8.4. Successor Person Substituted for Guarantors............................... 63
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures Without Consent of Holders........................ 64
Section 9.2. Supplemental Indentures with Consent of Holders........................... 65
Section 9.3. Execution of Supplemental Indentures...................................... 66
Section 9.4. Effect of Supplemental Indentures......................................... 67
Section 9.5. Reference in Securities to Supplemental Indentures........................ 67
Section 9.6. Conformity with Trust Indenture Act....................................... 67
Section 9.7. Notice of Supplemental Indenture.......................................... 67
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and Additional Amounts........ 67
Section 10.2. Maintenance of Office or Agency........................................... 68
Section 10.3. Money for Securities Payments to Be Held in Trust......................... 69
Section 10.4. Additional Amounts........................................................ 70
Section 10.5. Limitation on Liens....................................................... 71
Section 10.6. Limitation on Sale/Leaseback Transactions................................. 73
Section 10.7. Issuance of Subsidiary Guarantees......................................... 74
Section 10.8. Corporate Existence....................................................... 75
Section 10.9. Waiver of Certain Covenants............................................... 75
Section 10.10. Company Statement as to Compliance; Notice of Certain Defaults............ 75
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.................................................. 76
Section 11.2. Election to Redeem; Notice to Trustee..................................... 76
Section 11.3. Selection by Trustee of Securities to be Redeemed......................... 76
Section 11.4. Notice of Redemption...................................................... 77
Section 11.5. Deposit of Redemption Price............................................... 78
Section 11.6. Securities Payable on Redemption Date..................................... 79
Section 11.7. Securities Redeemed in Part............................................... 80
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article.................................................. 80
Section 12.2. Satisfaction of Sinking Fund Payments with Securities..................... 80
v
Section 12.3. Redemption of Securities for Sinking Fund................................. 81
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article.................................................. 81
ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article.................................................. 82
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called................................. 82
Section 15.2. Call, Notice and Place of Meetings........................................ 83
Section 15.3. Persons Entitled to Vote at Meetings...................................... 83
Section 15.4. Quorum; Action............................................................ 83
Section 15.5. Determination of Voting Rights; Conduct and Adjournment of Meetings....... 84
Section 15.6. Counting Votes and Recording Action of Meetings........................... 85
ARTICLE 16
GUARANTEES
Section 16.1. The Unconditional Guarantee............................................... 85
Section 16.2. Severability.............................................................. 86
Section 16.3. Limitation of Guarantors' Liability....................................... 86
Section 16.4. Successors and Assigns.................................................... 88
Section 16.5. No Waiver................................................................. 88
Section 16.6. Release of Guarantor...................................................... 88
Section 16.7. Execution of Supplemental Indenture for Future Guarantors................. 88
Section 16.8. Execution and Delivery of Guarantee....................................... 89
Section 16.9. Subordination of Subrogation and Other Rights............................. 89
vi
INDENTURE, dated as of _________, 2004 (this "Indenture"), among THE
LUBRIZOL CORPORATION, a corporation duly organized and existing under the laws
of the State of Ohio (hereinafter called the "Company"), having its principal
executive office located at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxx, 00000,
and the guarantors from time to time parties hereto and listed on Schedule A
hereto (each, a "Guarantor" and, collectively, the "Guarantors") and Xxxxx Fargo
Bank, National Association, a national banking association duly organized and
existing under the laws of the United States of America (hereinafter called the
"Trustee"), having its Corporate Trust Office located at ____.
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.
For value received, each Guarantor has duly authorized the execution and
delivery of this Indenture to provide for the issuance of the Guarantee provided
for herein. All things necessary to make this Indenture a valid agreement of the
Guarantors, in accordance with its terms, have been done.
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 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or
unless the context otherwise requires, for all purposes of this Indenture:
Sch A-1
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America 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 in the
United States of America at the date or time 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 1.4.
"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 or the Guarantors in respect of certain taxes,
assessments or other governmental charges imposed on Holders specified therein
and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"Attributable Debt" means, in respect of any Sale/Leaseback
Transaction, at any date as of which the amount thereof is to be determined, the
total net amount of rent required to be paid by the lessee of the property
subject to such Sale/Leaseback Transaction under the lease included in such
transaction during the remaining term thereof (including any period for which
such lease has been extended), discounted from the respective due dates thereof
to such date at the rate per annum equal to the weighted average of the interest
rate(s) of the Securities, or, in the case of Original Issue Discount
Securities, the yield to maturity, compounded semiannually. The net amount of
rent required to be paid under any such lease for any such period shall be the
aggregate amount of the rent payable by the lessee with respect to such period
after excluding amounts required to be paid on account of maintenance and
repairs, services, insurance, taxes, assessments, water rates and similar
charges and contingent rents (such as those based on sales).
2
In the case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount of rent shall include the lesser of (i) the total
discounted net amount of rent required to be paid from the later of the first
date upon which such lease may be so terminated or the date of the determination
of such amount of rent, as the case may be, and (ii) the amount of such penalty
(in which event no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so terminated).
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.11 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.
"Authorized Officer" means, when used with respect to the Company,
the Chairman of the Board of Directors, a Vice Chairman, the President, any Vice
President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company.
"Bearer Security" means any Security in the form established
pursuant to Section 2.1 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or
any committee of that board duly authorized to act generally or in any
particular respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions,
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, delivered to the Trustee.
"Business Day," with respect to any Place of Payment or other
location, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, any day other than 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.
"Capital Stock" means (1) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of common stock and preferred stock of such Person, and (2) with
respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
"Capitalized Lease Obligation" means an obligation under a lease
that is required to be capitalized for financial reporting purposes in
accordance with generally accepted
3
accounting principles, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with such principles.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" in respect of any Corporation means Capital Stock of
any class or classes (however designated) which has no preference as to the
payment of dividends, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Corporation, and which is not
subject to redemption by such Corporation.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person, and any other obligor upon the
Securities.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by an Authorized Officer and
delivered to the Trustee.
"Consolidated Assets" means all amounts that would be shown as
assets on a consolidated balance sheet of the Company and its Subsidiaries
prepared in accordance with GAAP.
"Consolidated Net Tangible Assets" means, as of any particular time,
the aggregate amount of Consolidated Assets (less depreciation, amortization and
other applicable reserves and other items deductible therefrom under GAAP) after
deducting therefrom (a) all current liabilities (excluding any thereof which are
by their terms extendible or renewable at the option of the obligor thereon to a
time more than 12 months after the time as of which the amount thereof is being
computed), (b) all goodwill, trade names, trademarks, patents and other
intangibles, in each case net of applicable amortization, and (c) appropriate
adjustments on account of minority interests of other Persons holding stock of
the Company's Subsidiaries, all as would be shown on a consolidated balance
sheet of the Company and its Subsidiaries, prepared in accordance with GAAP, as
of the date of the most recent quarterly consolidated balance sheet of the
Company and its Subsidiaries, prepared in accordance with GAAP, provided that,
in the case of a balance sheet as of the end of the first, second or fourth
quarterly fiscal periods of the Company, the date of such balance sheet is not
more than 125 days prior to the date of determination (130 days for quarterly
fiscal periods for fiscal years ending on or after December 15, 2004 and before
December 15, 2005) and, in the case of a balance sheet as of the end of the
third quarterly fiscal period of the Company, the date of such balance sheet is
not more than 150 days prior to the date of determination (165 days for
quarterly fiscal periods for fiscal years ending on or after December 15, 2004
and before December 15, 2005).
4
"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 for the purposes for which it was
established.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of original execution of this
Indenture is located at -.
"Corporation" includes corporations and limited liability companies
and, except for purposes of Article 8, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Credit Agreement" means the credit agreement providing, inter alia,
for revolving credit loans, term loans and/or letters of credit entered into
among the Company and/or any Subsidiary and one or more lenders on or about the
date hereof, together with all related notes, letters of credit, collateral
documents, guarantees, and any other related agreements and instruments executed
and delivered in connection therewith, in each case as amended, modified,
supplemented, refinanced, refunded or replaced in whole or in part from time to
time.
"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.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Ratings Services, CUSIP Service Bureau.
"Debt" or "Indebtedness" means, with respect to any Person, without
duplication:
(1) Obligations of such Person for money borrowed;
(2) all Obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all Obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations and
all Obligations under any title retention agreement (but excluding trade
accounts payable and other accrued liabilities arising in the ordinary
course of business that are not overdue by 90 days or more or are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted);
5
(5) all Obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than Obligations with respect to letters of credit
securing Obligations (other than Obligations described in clauses (1)
through (4) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if and
to the extent drawn upon, such drawing is reimbursed no later than the
third Business Day following receipt by such Person of demand for
reimbursement following payment on the letter of credit);
(6) all Obligations of the type referred to in clauses (1) through
(5) above of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable as
obligor, guarantor or otherwise;
(7) all Obligations of any other Person of the type referred to in
clauses (1) through (6) which are secured by any Lien on any property or
asset of such Person, the amount of such Obligation being deemed to be the
lesser of the Fair Market Value of such property or asset or the amount of
the Obligation so secured (whether or not such Obligation is assumed by
such Person); and
(8) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as Debt in clauses
(1) through (7) above.
"Defaulted Interest" has the meaning specified in Section 3.7.
"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 5.1.
"Fair Market Value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market transaction,
for cash, between a willing seller and a willing and able buyer, neither of whom
is under undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution.
"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 governments.
"Funded Debt" means indebtedness created, assumed or guaranteed by a
Person for money borrowed that matures by its terms, or is renewable by the
borrower to a date, more than 12 months after the date of original creation,
assumption or guarantee.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments which issued the Foreign Currency in which the principal of or any
premium or interest on such Security or any Additional Amounts in respect
thereof shall be payable, in each case where the payment or payments
6
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 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.
"Guarantee" or "Guarantees" means the unconditional guarantee of the
payment of the principal of, any premium or interest on, and any Additional
Amounts with respect to, the Securities by each of the Guarantors, as more fully
set forth in Article 16.
"Guarantor" or "Guarantors" means the Persons named in Schedule A
hereto; provided that any Person constituting a Guarantor as described above
shall cease to constitute a Guarantor when its Guarantee is released in
accordance with the terms of this Indenture.
"Guarantors' Board of Directors" means the boards of directors of
each Guarantor or any committee of any such board duly authorized to act
generally or in any particular respect for the respective Guarantor hereunder.
"Guarantors' Board Resolution" means a copy of one or more
resolutions, certified by the Secretary or an Assistant Secretary of a Guarantor
to have been duly adopted by each of the Guarantors' Board of Directors and to
be in full force and effect on the date of such certification, delivered to the
Trustee.
"Guarantors' Officer's Certificate" means a certificate signed by
the Chairman of the Guarantors' Board of Directors, a Vice Chairman, the
President, the Chief Financial Officer, the Chief Investment Officer, the Chief
Accounting Officer, the General Counsel or the Secretary of each Guarantor, that
complies with the requirements of Section 314(e) of the Trustee Indenture Act
and is delivered to the Trustee.
"Guarantors' Request" and "Guarantors' Order" mean, respectively, a
written request or order, as the case may be, signed in the name of each
Guarantor by the Chairman of such Guarantor's Board of Directors, a Vice
Chairman, the President, the Chief Financial Officer, the Chief Investment
Officer, the Chief Accounting Officer, the General Counsel or the Secretary of
the Guarantor, and delivered to the Trustee.
"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.
7
"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 3.1 (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, the Guarantors 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 the Guarantors 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 may be more or less than
the principal face amount thereof at original issuance.
"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 10.4 or 16.1, includes such
Additional Amounts.
"Interest Payment Date," with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Issue Date" means , 2004, the date that the Securities are first
issued under this Indenture.
"Judgment Currency" has the meaning specified in Section 1.16.
"Lien" has the meaning specified in Section 10.5.
"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 the Redemption
Date.
"New York Banking Day" has the meaning specified in Section 1.16.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Office" or "Agency," with respect to any Securities, means an
office or agency of the Company and the Guarantors maintained or designated in a
Place of Payment for such
8
Securities pursuant to Section 10.2 or any other office or agency of the Company
and the Guarantors maintained or designated for such Securities pursuant to
Section 10.2 or, to the extent designated or required by Section 10.2 in lieu of
such office or agency, the Corporate Trust Office of the Trustee.
"Officer" means, with respect to any Person, the Chief Executive
Officer, the Chief Financial Officer, Treasurer, President or any Vice President
of such Person.
"Officer's Certificate" means a certificate signed by an Authorized
Officer that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
an employee of or counsel for the Company or the Guarantors, 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 5.2.
"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;
(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 4.2) with the Trustee or any Paying
Agent (other than the Company or the Guarantors) in trust or set aside and
segregated in trust by the Company or the Guarantors (if the Company shall
act as its own, or authorize a Guarantor to act as, 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 or the
Guarantors have effected defeasance pursuant to the terms hereof, except
to the extent provided in Section 4.2;
(d) any such Security which has been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, 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
9
(e) any such Security converted or exchanged as contemplated by
this Indenture into securities of the Company or the Guarantors or another
issuer, if the terms of such Security provide for such conversion or
exchange pursuant to Section 3.1;
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 5.2 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 purposes 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, the Guarantors or any other obligor
upon the Securities or any Affiliate of the Company, the Guarantors 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 actually 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 to such Securities and (B) that the
pledgee is not the Company, the Guarantors or any other obligor upon the
Securities or any Coupons appertaining thereto or an Affiliate of the Company,
the Guarantors 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" means any individual, Corporation, partnership, limited
liability company, joint venture, joint-stock 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 3.6 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any
10
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.
"Preferred Stock" in respect of any Corporation means Capital Stock
of any class or classes (however designated) which is preferred as to the
payment of dividends, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Corporation, over shares of
Capital Stock of any other class of such Corporation.
"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 2.1 which is registered in a Security Register.
"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 1.16.
"Responsible Officer" means any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, or any trust officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means (1) any Wholly Owned Subsidiary of the
Company substantially all of the assets of which are located in the United
States (excluding territories or possessions) and (2) any Wholly Owned
Subsidiary of the Company which owns, directly or indirectly, any stock or
indebtedness of a Restricted Subsidiary.
"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 3.5.
11
"Special Record Date" for the payment of any Defaulted Interest on
any Registered Security means a date fixed by the Company pursuant to Section
3.7.
"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, with respect to any Person, (1) any corporation
of which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person and (2) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
"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.
"United States," except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"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.
"U.S. Depository" or "Depository" means, with respect to any
Security issuable or issued in the form of one or more global Securities, the
Person designated as U.S. Depository or Depository by the Company in or pursuant
to this Indenture, which Person must be, to the extent required by applicable
law or regulation, a clearing agency registered under the Securities Exchange
Act of 1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depository" or "Depository" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
12
"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."
"Wholly Owned Subsidiary" means, with respect to the Company, any
Subsidiary of which all of the outstanding voting securities are owned by the
Company or any other Wholly Owned Subsidiary of the Company.
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company or the Guarantors to the Trustee to take
any action under any provision of this Indenture, the Company or the Guarantors,
as the case may be, shall furnish to the Trustee an Officer's Certificate or a
Guarantors' Officer's 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 the individual signing such 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 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 such individual,
such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
13
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, provided
that such officer, after reasonable inquiry, has no reason to believe and does
not believe that the Opinion of Counsel with respect to the matters upon which
his certificate or opinion is based is 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 stating
that the information with respect to such factual matters is in the possession
of the Company, provided that such counsel, after reasonable inquiry, has no
reason to believe and does not believe 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 1.4. Acts of Holders.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by 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 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 15, 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 or the Guarantors or both of
them. 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, the Company, the Guarantors and any agent of the Trustee, the
Company or the Guarantors, 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 15.6.
Without limiting the generality of this Section 1.4, unless
otherwise provided in or pursuant to this Indenture, a Holder, including a
U.S. 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 to be made, given or taken by
Holders, and a U.S. Depository that is a Holder of a global Security may
provide its proxy or proxies to
14
the beneficial owners of interests in any such global Security through
such U.S. 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 interests in any permanent global
Security held by a U.S. Depository entitled under the procedures of such
U.S. 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 referred to in this Section 1.4 may be proved in any
reasonable manner; 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 and the Guarantors, wherever
situated, if such certificate shall be deemed by the Company, the
Guarantors 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
Trustee to be satisfactory. The Trustee, the Company and the Guarantors
may assume that such ownership of any Bearer Security continues until (i)
another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (ii) such Bearer Security is
produced to the Trustee by some other Person, or (iii) such Bearer
Security is surrendered in exchange for a Registered Security, or (iv)
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, the Guarantors and the Trustee deem
sufficient.
(5) If the Company or the Guarantors shall solicit from the
Holders of any Registered Securities any request, demand, authorization,
direction, notice, consent,
15
waiver or other Act, the Company or the Guarantors, as the case may be,
may at its option (but is not obligated to), by Board Resolution or
Guarantors' Board Resolution, as the case may be, 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, any Guarantor or
the Company in reliance thereon, whether or not notation of such Act is
made upon such Security.
Section 1.5. Notices, Etc. to Trustee, Company and any Guarantors.
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, any Guarantor or the Company shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company or any Guarantor, as the case may be, 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 or the Guarantors, as the case
may be, addressed to the attention of its Treasurer, with a copy to the
attention of its General Counsel, at the address of its principal office
specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company or
the Guarantors, as the case may be.
Section 1.6. 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,
16
(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 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 Bearers 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 1.7. 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 or the Guarantors, as the case may be, so
elect, any published notice may be in an official language of the country of
publication.
17
Section 1.8. 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 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not. All covenants and
agreements in this Indenture by the Guarantors shall bind their successors and
assigns, whether so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture, any Security 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 1.12. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or implied,
shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent, any Authenticating 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 1.13. Governing Law.
This Indenture, the Securities 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 1.14. 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 legal holiday 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 Payment with
the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or
18
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, Maturity or last day for
conversion or exchange to such next succeeding Business Day.
Section 1.15. 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 1.16. Judgment Currency.
The Company and each Guarantor agree, to the fullest extent that they 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 requisite amount of the
Required Currency with the Judgment Currency on the New York Banking Day
preceding the day on which a final unappealable judgment is given and (b) their
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.
Section 1.17. No Security Interest Created.
Subject to the provisions of Section 10.5, nothing in this Indenture or in
any Securities, express or implied, shall be construed to constitute a security
interest under the Uniform Commercial Code or similar legislation, as now or
hereafter enacted and in effect in any jurisdiction where property of the
Company, the Guarantors or their respective Subsidiaries is or may be located
including, without limitation, stock of any foreign entity held by the Company.
Section 1.18. Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained
in this Indenture or in any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator, shareholder
(except in a shareholder's corporate capacity as Guarantor), officer or
director, as such, past, present or future, of the Company or any Guarantor,
19
as the case may be, either directly or through the Company or any Guarantor, as
the case may be, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators, shareholders,
officers or directors, as such, of the Company or any Guarantor, as the case may
be, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any Security or implied therefrom; and that
any and all such personal liability of every name and nature, either at common
law or in equity or by constitution or statute, of, and any and all such rights
and claims against, every such incorporator, shareholder, officer or director,
as such, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this
Indenture or in any Security or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of such Security.
Section 1.1. Submission to Jurisdiction.
The Company and each Guarantor agree that any judicial proceedings
instituted in relation to any matter arising under this Indenture, the
Securities or any Coupons appertaining thereto may be brought in any United
States federal or New York State court sitting in the Borough of Manhattan, The
City of New York, New York to the extent that such court has subject matter
jurisdiction over the controversy, and, by execution and delivery of this
Indenture, the Company and each Guarantor each hereby irrevocably accepts,
generally and unconditionally, the jurisdiction of the aforesaid courts,
acknowledges their competence and irrevocably agrees to be bound by any
judgement rendered in such proceeding. The Company and each Guarantor each also
irrevocably and unconditionally waives for the benefit of the Trustee and the
Holders of the Securities and Coupons any immunity from jurisdiction and any
immunity from legal process (whether through service or notice, attachment prior
to judgement, attachment in the aid of execution, execution or otherwise) in
respect of this Indenture. The Company and each Guarantor each hereby
irrevocably designates and appoints for the benefit of the Trustee and the
Holders of the Securities and Coupons for the term of this Indenture - , as its
agent to receive on its behalf service of all process (with a copy of all such
service of process to be delivered to the Vice President and General Counsel of
the Company) brought against it with respect to any such proceeding in any such
court in The City of New York, such service being hereby acknowledged by each of
the Company and the Guarantors to be effective and binding service on it in
every respect whether or not the Company or each Guarantor, as the case may be,
shall then be doing or shall have at any time done business in New York. Such
appointment shall be irrevocable so long as any of the Securities or Coupons or
the respective obligations of the Company and each Guarantor hereunder remain
outstanding, or until the appointment of a successor by the Company or the
Guarantors, as the case may be, and such successor's acceptance of such
appointment. Upon such acceptance the Company or the Guarantors, as the case may
be, shall notify the Trustee of the name and address of such successor. The
Company and each Guarantor each further agree for the benefit of the Trustee and
the Holders of the Securities and the Coupons to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
said - in full force and effect so long as any of the
20
Securities or Coupons or the respective obligations of the Company and the
Guarantors hereunder shall be outstanding. The Trustee shall not be obligated
and shall have no responsibility with respect to any failure by the Company or
any Guarantor to take any such action. Nothing herein shall affect the right to
serve process in any other manner permitted by any law or limit the right of the
Trustee or any Holder to institute proceedings against the Company or the
Guarantors in the courts of any other jurisdiction or jurisdictions.
ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have 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
officers executing such Security or Coupon as evidenced by their 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
and shall not be issuable upon the exercise of warrants.
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 officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 2.2. Form of Trustee's Certificate of Authentication.
Subject to Section 6.11, 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.
Xxxxx Fargo Bank, National Association, as Trustee
By ________________________________________
Authorized Officer
21
Section 2.3. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in 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 3.3 or 3.4 with respect
thereto. Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, the Trustee shall deliver and redeliver, in each case at the Company's
expense, any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.3 or 3.4 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 Officer's Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise specified
in or pursuant to this Indenture or any Securities, payment of principal of, any
premium and interest on, and any 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 3.8 and except as provided in
the preceding paragraph, the Company, the Guarantors, the Trustee and any agent
of the Company, the Guarantors or 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 3.1.
ARTICLE 3
THE SECURITIES
Section 3.1. 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 Officer's Certificate, or established in one or more indentures
supplemental hereto,
22
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) 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 3.4, 3.5, 3.6, 9.5 or 11.7, upon repayment in part of any
Registered Security of such series pursuant to Article 13, upon surrender
in part of any Registered Security for conversion into other securities of
the Company or exchange for securities of the Guarantors or another issuer
pursuant to its terms, or pursuant to or as contemplated by the terms of
such Securities);
(3) 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;
(4) 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 3.5, and (iii) the name of the
Depository or the U.S. Depository, as the case may be, with respect to any
such global Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer
Security or global Security shall be dated (if other than the date of
original issuance of the first of such Securities to be issued);
(6) 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 shall be 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;
(7) the date or dates, or the method or methods, if any, by which
such date or dates shall be determined, on which the principal of such
Securities is payable;
(8) 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
23
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;
(9) 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 or the Guarantors 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;
(10) 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;
(11) whether 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;
(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than in 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;
(13) whether the Securities of the series will be convertible into
other securities of the Company and/or exchangeable for securities of the
Guarantors or another issuer, 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;
(14) 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
24
the Maturity thereof pursuant to Section 5.2 or the method by which such
portion is to be determined;
(15) 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;
(16) 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;
(17) 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;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company or the Guarantors 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;
(19) whether either or both of Section 4.2(2) relating to
defeasance or Section 4.2(3) relating to covenant defeasance shall not be
applicable to the Securities of such series, or any covenants in addition
to those specified in Section 4.2(3) relating to the Securities of such
series which shall be subject to covenant defeasance, and any deletions
from, or modifications or additions to, the provisions of Article 4 in
respect of the Securities of such series;
(20) whether 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;
(21) 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;
25
(22) 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; and
(23) any other terms of such Securities and any other 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
thereon, 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 Officer's 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 written order of persons designated in the Officer's Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officer's Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officer's Certificate or supplemental indenture. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided, 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 Officer's
Certificate setting forth the terms of such series.
Section 3.2. 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 denominations 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 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman of
the Board, a Vice Chairman, its Chief Executive Officer, its President, its
Treasurer or a Vice President and attested by its Secretary or one of its
Assistant Secretaries. Coupons shall be executed on behalf of the Company by the
Treasurer or any Assistant Treasurer of the Company. The signature of any of
these officers on the Securities or any Coupons appertaining thereto may be
manual or facsimile.
26
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 and the Guarantors, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities and Coupons or did not hold such
offices at the date of original issuance 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, to the Trustee for authentication
and, provided that the Board Resolution and Officer's Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 3.1 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 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,
(1) 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 the
provisions of this Indenture;
(b) all conditions precedent 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, executed and
attested 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 legally valid and binding obligations of the Company,
enforceable against the Company 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) and will entitle the
Holders thereof to the benefits of this Indenture, including the
Guarantee; provided, however, that such Opinion of Counsel need
express no opinion as to the availability of equitable remedies;
(c) all laws and requirements in respect of the execution
and delivery by the Company of such Securities and Coupons, if any,
have been complied with; and
(d) this Indenture has been qualified under the Trust
Indenture Act; and
27
(2) an Officer's Certificate and a Guarantors' Officer's
Certificate, in each case stating that, to the best knowledge of the
Persons executing such certificate, all conditions precedent to the
execution, authentication and delivery of such Securities and
Coupons, if any, appertaining thereto, have been complied with, and
no event which is, or after notice or lapse of time would become, an
Event of Default with respect to any of the Securities shall have
occurred and be continuing.
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 and an Officer's
Certificate and Guarantors' Officer's Certificate at the time of issuance of
each Security, but such opinion and certificates, with appropriate
modifications, shall be delivered at or before the time of issuance of the first
Security of such series. After any such first delivery, any separate written
request by an Authorized Officer of the Company or any person designated in
writing by an Authorized Officer that the Trustee authenticate and deliver
Securities of such series for original issue will be deemed to be a
certification by the Company and the Guarantors that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such
Securities continue to have been complied with and that no Event of Default with
respect to any of the Securities has occurred or is continuing.
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 shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for in Section 2.2 or 6.11 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 3.6 or 3.7, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
Section 3.4. 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 3.3, 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 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
28
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. 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; 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 3.5. 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 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 by the
Company. 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,
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.
29
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, 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,
the Guarantors 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, the Guarantors 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 10.2, 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 the opening of business at such Office or Agency on the next
succeeding 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 shall not be payable on such Interest Payment
Date or proposed date for 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.
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, and the
Trustee shall
30
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
Securities only if (i) the Depository is at any time unwilling, unable or
ineligible to continue as depository and a successor depository is not appointed
by the Company within 90 days of the date the Company is so informed in writing,
(ii) the Company 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 the 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
U.S. Depository or such other Depository as shall be specified in the Company
Order with respect thereto, and in accordance with instructions given to the
Trustee and the U.S. Depository or such other Depository, as the case may be
(which instructions shall be in writing but need not be contained in or
accompanied by an Officer's 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 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 beneficial owner thereof, 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 the U.S. Depository or such other Depository
or U.S. 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 succeeding 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
31
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 issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and each Guarantor,
respectively, evidencing the same debt and entitling the Holders thereof to the
same benefits under this Indenture as the Securities surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange 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, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge and any other
expenses (including fees and expenses of the Trustee) that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.5 or 11.7 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 the opening of business 15 days before
the day of mailing of a notice of redemption of Securities of like tenor and the
same series under Section 11.3 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any Registered
Security selected for redemption in whole or in part, except in the case of any
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security 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 immediately 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 3.6. 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 3.6, the Company shall execute, 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.
32
If there is delivered to the Company, any Guarantor and 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, any Guarantor 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 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 appertaining
thereto 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.
Notwithstanding the foregoing provisions of this Section 3.6, 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 10.2, 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.
Upon the issuance of any new Security under this Section 3.6, 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 3.6 in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen Coupon appertains,
shall constitute a separate obligation of the Company and the Guarantors,
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 3.6, as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, shall 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 3.7. 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 that shall
be payable, and are punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in
33
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, any interest
on and any Additional Amounts with respect to any Registered Security that 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 or any Guarantor, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company or any Guarantor, as the case may be, 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 by the Company in
the following manner. The Company or any Guarantor, as the case may be,
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on such Registered Security, the Special Record Date
therefor and the date of the proposed payment, and at the same time the
Company or any Guarantor, as the case may be, 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. The Special Record Date for the payment of such Defaulted
Interest 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
notification to the Trustee of the proposed payment. The Trustee shall, in
the name and at the expense of the Company or the Guarantors, 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 or any Guarantor, 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).
(2) The Company or any Guarantor, as the case may be, 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
34
or any Guarantor, as the case may be, 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 pursuant to the provisions of this
Indenture, at the option of the Company or any Guarantor, 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 3.5, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
In the case of any Registered Security of any series that is convertible
into other securities of the Company or exchangeable for securities of the
Guarantors or another issuer, 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 3.8. 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
or 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 3.5 and 3.7) 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 none of the Company, the Guarantors, the Trustee and any
agent of the Company, the Guarantors or the Trustee shall be affected by notice
to the contrary.
The Company, each Guarantor, the Trustee and any agent of the Company,
each Guarantor 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, each Guarantor, the Trustee
and any agent of the Company, any Guarantor or the Trustee shall be affected by
notice to the contrary.
35
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, any
Guarantor, the Trustee and any agent of the Company, any Guarantor or the
Trustee as the owner of such global Security for all purposes whatsoever. None
of the Company, any Guarantor, the Trustee, any Paying Agent and 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.
Section 3.9. 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 or any Guarantor may at
any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company or any Guarantor 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 or Guarantor Order the Company or any Guarantor, as
the case may be, directs their return to it.
Section 3.10. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in any
Security, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order or of any Guarantor
by a Guarantor Order, this Indenture shall cease to be of further effect with
respect to any series of Securities specified in such Company Order or Guarantor
Order and any Coupons appertaining thereto, and the Trustee, on receipt of a
Company Order or a Guarantor Order at the expense of the Company and the
Guarantors, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series, if
(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
36
or has been waived as provided in Section 3.5, (ii) Securities and
Coupons of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6, (iii)
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 11.7, 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 or any Guarantor and thereafter repaid to the Company
or such Guarantor, as the case may be, or discharged from such
trust, as provided in Section 10.3) have been delivered to the
Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or
(ii) below, any 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 Guarantors,
and the Company or any 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 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 any 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 Officer's
Certificate and an Opinion of Counsel and the Guarantors have delivered to
the Trustee a Guarantors' Officer's Certificate, 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.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company and the
Guarantors to the Trustee under Section 6.6 and, if money shall have been
deposited with the Trustee pursuant to subclause (b) of clause
37
(1) of this Section, the obligations of the Company, the Guarantors and the
Trustee with respect to the Securities of such series under Sections 3.5, 3.6,
4.3, 10.2 and 10.3, with respect to the payment of Additional Amounts, if any,
with respect to such Securities as contemplated by Sections 10.4 and 16.1 (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 4.1(1)(b)), and with respect to any rights to convert or
exchange such Securities into securities of the Company or any Guarantor or
another issuer shall survive.
Section 4.2. Defeasance and Covenant Defeasance.
(1) Unless pursuant to Section 3.1, either or both of (i)
defeasance of the Securities of or within a series under clause (2) of
this Section 4.2 shall not be applicable with respect to the Securities of
such series or (ii) covenant defeasance of the Securities of or within a
series under clause (3) of this Section 4.2 shall not be applicable with
respect to the Securities of such series, then such provisions, together
with the other provisions of this Section 4.2 (with such modifications
thereto as may be specified pursuant to Section 3.1 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 4.2(2) or Section 4.2(3) be
applied to such Outstanding Securities and any Coupons appertaining
thereto upon compliance with the conditions set forth below in this
Section 4.2.
(2) Upon the Company's exercise of the above option applicable to
this Section 4.2(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 and under the Guarantee in respect thereof,
respectively, on the date the conditions set forth in clause (4) of this
Section 4.2 are satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that the Company and/or the Guarantors shall be
deemed to have paid and discharged the entire Indebtedness represented by
such Outstanding Securities and any Coupons appertaining thereto, and
under the Guarantee in respect thereof, which shall thereafter be deemed
to be "Outstanding" only for the purposes of clause (5) of this Section
4.2 and the other Sections of this Indenture referred to in clauses (i)
and (ii) below, and to have satisfied all of its other obligations under
such Securities and any Coupons appertaining thereto, and under the
Guarantee in respect thereof, and this Indenture insofar as such
Securities and any Coupons appertaining thereto, and the Guarantee in
respect thereof, are concerned (and the Trustee, at the expense of the
Company and the Guarantors, 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 4.2 and
as more fully set forth in such clause, 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 such Securities into other securities of the
Company or exchange such Securities for securities of a Guarantor or
another issuer,
38
(ii) the obligations of the Company, the Guarantors and the Trustee with
respect to such Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with
respect to the payment of Additional Amounts, if any, on such Securities
as contemplated by Sections 10.4 and 16.1 (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
4.2(4)(a) below), and with respect to any rights to convert such
Securities into other securities of the Company or exchange such
Securities for securities of the Guarantors or another issuer, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and
(iv) this Section 4.2. The Company may exercise its option under this
Section 4.2(2) notwithstanding the prior exercise of its option under
clause (3) of this Section 4.2 with respect to such Securities and any
Coupons appertaining thereto.
(3) Upon the Company's exercise of the option to have this Section
4.2(3) apply with respect to any Securities of or within a series, the
Company and the Guarantors shall be released from their obligations under
Sections 10.5 and 10.6, and, to the extent specified pursuant to Section
3.1(19), any other covenant applicable to such Securities, with respect to
such Outstanding Securities and any Coupons appertaining thereto, and the
Guarantees in respect thereof, on and after the date the conditions set
forth in clause (4) of this Section 4.2 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 the Guarantors may omit to comply with, and shall
have no liability in respect of, any term, condition or limitation set
forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a default
or an Event of Default under Section 5.1(4) or 5.1(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 and the
Guarantee in respect thereof shall be unaffected thereby.
(4) The following shall be the conditions to application of clause
(2) or (3) of this Section 4.2 to any Outstanding Securities of or within
a series and any Coupons appertaining thereto and the Guarantee in respect
thereof:
(a) The Company or any Guarantor shall irrevocably have
deposited or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 6.7 who shall agree
to comply with the provisions of this Section 4.2 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
39
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) 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 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 such
Outstanding Securities and any Coupons appertaining thereto at the
Stated Maturity of such principal or installment of principal or
premium or interest and (z) any mandatory sinking fund payments or
analogous payments applicable to such Outstanding Securities and any
Coupons appertaining thereto on the days 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 the Guarantors is a party or by which either of them 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, with
respect to defeasance only, at any time during the period ending on
the 123rd day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under clause (2) of this
Section 4.2, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Company has received from
the Internal Revenue Service a letter ruling, or there has been
published by the Internal Revenue Service a Revenue Ruling, or (ii)
since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that,
the Holders of 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.
(e) In the case of an election under clause (3) of this
Section 4.2, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect
40
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.
(f) 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 or the
Guarantors under any federal or State bankruptcy, insolvency,
reorganization or other similar law, or any decree or order for
relief in respect of the Company or the Guarantors issued in
connection therewith.
(g) The Company and the Guarantors shall have delivered to
the Trustee an Officer's Certificate and a Guarantors' Officer's
Certificate and the Company shall have delivered to the Trustee an
Opinion of Counsel stating that all conditions precedent to the
defeasance or covenant defeasance under clause (2) or (3) of this
Section 4.2 (as the case may be) have been complied with.
(h) Notwithstanding any other provision of this Section
4.2(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 or the Guarantors in
connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or
any Security, if, after a deposit referred to in Section 4.2(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 3.1 or the
terms of such Security to receive payment in a Currency other than that in
which the deposit pursuant to Section 4.2(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 4.2(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 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.
41
The Company and the Guarantors (without duplication) shall pay and
indemnify the Trustee (or other qualifying trustee, collectively for purposes of
this Section 4.2(5) and Section 4.3, the "Trustee") against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 4.2 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 4.2 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request, or
the Guarantors upon a Guarantor Request, as the case may be, any money or
Government Obligations (or other property and any proceeds therefrom) held by it
as provided in clause (4) of this Section 4.2 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 4.2.
Section 4.3. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money
and Government Obligations (or other property as may be provided pursuant to
Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.1 or 4.2 in respect of any Outstanding Securities of any
series and any Coupons appertaining thereto shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and any
Coupons appertaining thereto and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent or the Guarantors acting as Paying Agent) as the Trustee may determine, to
the Holders of such Securities and any Coupons appertaining thereto of all sums
due and to become due thereon in respect of principal (and premium, if any) and
interest and Additional Amounts, if any; but such money and Government
Obligations need not be segregated from other funds except to the extent
required by law.
ARTICLE 5
REMEDIES
Section 5.1. 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 Officer's Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on any Security of such
series, or any Additional Amounts payable with respect thereto, when such
interest becomes or
42
such Additional Amounts become due and payable, and continuance of such
default for a period of 30 days;
(2) default in the payment of the principal of or any premium on
any Security of such series, or any Additional Amounts payable with
respect thereto, when such principal or premium becomes or such Additional
Amounts become due and payable at their Maturity;
(3) default in the deposit of any sinking fund payment when and as
due by the terms of a Security of such series;
(4) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantors in this Indenture or the
Securities (other than a covenant or warranty a default in the performance
or the breach of which is elsewhere in this Section specifically dealt
with or which has been expressly included in this Indenture solely for the
benefit of a series of Securities 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 and the Guarantors
by the Trustee or to the Company, the Guarantors 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) if any event of default as defined in any mortgage, indenture
or instrument under which there may be issued, or by which there may be
secured or evidenced, any Debt of the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any
of its Restricted Subsidiaries) (including, in each case, an Event of
Default under any other series of Securities), whether such Debt now
exists or shall hereafter be created or incurred, shall happen and shall
consist of default in the payment of more than $25,000,000 in principal
amount of such Indebtedness at the maturity thereof (after giving effect
to any applicable grace period) or shall result in such Debt in principal
amount in excess of $25,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise become due and payable, and
such default shall not be cured or such acceleration shall not be
rescinded or annulled within a period of 30 days after there shall have
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 event of default and requiring the Company to cause
such acceleration to be rescinded or annulled or to cause such Debt to be
discharged and stating that such notice is a "Notice of Default"
hereunder;
(6) the Company shall fail within 60 days to pay, bond or
otherwise discharge any uninsured judgment or court order for the payment
of money in excess of $25,000,000, which is not stayed on appeal or is not
otherwise being appropriately contested in good faith;
(7) the entry by a court having competent jurisdiction of:
43
(a) a decree or order for relief in respect of the Company
or the Guarantors in an involuntary proceeding under any applicable
bankruptcy, insolvency, reorganization (other than a reorganization
under a foreign law that does not relate to insolvency) or other
similar law and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Company or the
Guarantors to be insolvent, or approving a petition seeking
reorganization (other than a reorganization under a foreign law that
does not relate to insolvency), arrangement, adjustment or
composition of the Company or the Guarantors and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(c) a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official of
the Company or the Guarantors of any substantial part of the
property of the Company or the Guarantors or ordering the winding-up
or liquidation of the affairs of the Company or the Guarantors;
(8) the commencement by the Company or the Guarantors of a
voluntary proceeding under any applicable bankruptcy, insolvency,
reorganization (other than a reorganization under a foreign law that does
not relate to insolvency) or other similar law or of a voluntary
proceeding seeking to be adjudicated insolvent or the consent by the
Company or the Guarantors to the entry of a decree or order for relief in
an involuntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
insolvency proceedings against it, or the filing by the Company or the
Guarantors of a petition or answer or consent seeking reorganization,
arrangement, adjustment or composition of the Company or relief under any
applicable law, or the consent by the Company or the Guarantors to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or similar official of
the Company or the Guarantors or any substantial part of the property of
the Company or the Guarantors or the making by the Company or the
Guarantors of an assignment for the benefit of creditors, or the taking of
corporate action by the Company or the Guarantors in furtherance of any
such action;
(9) any Guarantee of any Guarantor ceases to be in full force and
effect or any Guarantee of such Guarantor is declared to be null and void
and unenforceable or any Guarantee of such Guarantor is found to be
invalid or any Guarantor denies its liability under its Guarantee (other
than by reason of release of such Guarantor in accordance with the terms
of this Indenture); and
(10) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
44
Section 5.2. 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 specified in clause (7) or (8)
of Section 5.1) occurs and is continuing, then 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, 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 shall become immediately due and payable.
If an Event of Default specified in clause (7) or (8) of Section 5.1
occurs, all unpaid principal of and accrued interest on 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 a declaration of acceleration with respect to the
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of 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 the Guarantors have paid or deposited with the
Trustee a sum of money sufficient to pay
(a) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such series and
any Coupon appertaining 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 interest thereon and any Additional Amounts with
respect thereto at the rate or rates borne by or provided for in
such Securities,
(c) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue installments of
any interest and Additional Amounts at the rate or rates borne by or
provided for in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due the
Trustee under Section 6.6; 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 5.13.
45
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company and each Guarantor covenants, in each case, that if
(1) default is made in the payment of any installment of interest
on or any Additional Amounts with respect to any Security or any Coupon
appertaining thereto when such interest or Additional Amounts 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 the principal of or any
premium on any Security or any Additional Amounts with respect thereto at
their Maturity,
the Company or the Guarantors, as the case may be, 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 that
payment of such interest shall be legally enforceable, upon any overdue
installments of interest and Additional Amounts at the rate or rates borne by or
provided for in 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 6.6.
If the Company or any Guarantor 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 or the 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 or the Guarantor or any other obligor upon such
Securities and any Coupons appertaining thereto, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series 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 5.4. 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
46
Company, the Guarantors or any other obligor upon the Securities of any series
or the property of the Company, the Guarantors 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 or the Guarantors 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 any applicable 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 appertaining thereto 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 6.6.
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 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.
Section 5.5. Trustee May Enforce Claims without Possession of Securities
or Coupons.
All rights of action and claims under this Indenture or any of the
Securities 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 the
Securities or Coupons in respect of which such judgment has been recovered.
47
Section 5.6. 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 6.6;
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; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 5.7. 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 such
indemnity as is reasonably satisfactory to it against the costs, expenses
and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities 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 or any Security 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
48
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 5.8. 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 and (subject to Sections 3.5
and 3.7) interest on, and any Additional Amounts with respect to such Security
or payment of such Coupon 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 5.9. 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 5.10. 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 3.6, 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 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 5.11. 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.
49
Section 5.12. 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 such 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 5.13. 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 9 cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 5.14. Waiver of Usury, Stay or Extension Laws.
The Company and the Guarantors covenant that (to the extent that they 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 usury, 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 the Company and
the Guarantors expressly waive (to the extent that they may lawfully do so) all
benefit or advantage of any such law and covenant 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.
50
Section 5.15. 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,
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 5.15 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 other securities in accordance with its terms.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, 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;
(2) any request or direction of the Company or of the Guarantors
mentioned herein shall be sufficiently evidenced by a Company Request or a
Company Order or by a Guarantor Request or Guarantor Order, as the case
may be (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 3.3 which shall be sufficiently evidenced as
provided therein), and any resolution of the Board of Directors or of the
Guarantors' Board of Directors may be sufficiently evidenced by a Board
Resolution or by a Guarantors' Board Resolution, as the case may be;
(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 Officer's Certificate or,
if such matter pertains to the Guarantors, a Guarantors' Officer's
Certificate;
51
(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 such security or indemnity as is
reasonably satisfactory to it 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, but shall not be obligated to 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 and
the Guarantors, personally or by agent or attorney;
(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;
(8) the Trustee shall not be liable for any action taken or error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent, acted in bad faith or engaged in willful misconduct;
(9) the Authenticating Agent, Paying Agent, and Security Registrar
shall have the same protections as the Trustee set forth hereunder; and
(10) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with an Act of the Holders hereunder, and, to the extent not so provided
herein, with respect to any act requiring the Trustee to exercise its own
discretion, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture or any
Securities, unless it shall be proved that, in connection with any such
action taken, suffered or omitted or any such act, the Trustee was
negligent, acted in bad faith or engaged in willful misconduct.
Section 6.2. 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 7.3(3), notice of such default hereunder
52
actually known to a Responsible Officer of 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 or purchase 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 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 5.1(5) 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 6.3. 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 Guarantors, 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 6.4. 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
Guarantors or the Company, 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 the
Guarantors with the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other Person.
Section 6.5. Money Held in Trust.
Except as provided in Section 4.3 and Section 10.3, 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 to in writing with the Company or the Guarantors.
Section 6.6. Compensation and Reimbursement.
The Company and each Guarantor (without duplication) agree:
53
(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);
(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 or arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder (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, officers, directors
and employees 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 and the
Guarantors 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, and
premium or interest on or any Additional Amounts with respect to Securities or
any Coupons appertaining thereto.
To the extent permitted by law, any compensation or expense incurred by
the Trustee after a default specified in or pursuant to Section 5.1 is intended
to constitute an expense of administration under any then applicable bankruptcy
or insolvency law. "Trustee" for purposes of this Section 6.6 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 6.6.
The provisions of this Section 6.6 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee
and shall apply with equal force and effect to the Trustee in its capacity as
Authenticating Agent, Paying Agent or Security Registrar.
Section 6.7. Corporate Trustee Required; Eligibility.
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, that is 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, and that is 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.
54
Section 6.8. 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
6.9.
(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 and the Guarantors. If the instrument of acceptance by a successor
Trustee required by Section 6.9 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, the Company and the Guarantors.
(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, the Guarantors 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 6.7
and shall fail to resign after written request therefor by the
Company, the Guarantors 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, or the Guarantors by or pursuant to a Guarantors' 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 and the Guarantors by or pursuant to
a Guarantors' Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of such series (it being
understood that any such successor Trustee may be appointed with respect
to the
55
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.9.
If, within one year after such resignation, removal or incapacity, 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, the Guarantors and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable requirements of Section
6.9, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company and the Guarantors. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company and
the Guarantors or the Holders of Securities and accepted appointment in
the manner required by Section 6.9, 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 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.
(7) In no event shall any retiring Trustee be liable for the acts
or omissions of any successor Trustee hereunder.
Section 6.9. 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, the
Guarantors 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 10.3, 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 6.6.
56
(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 Guarantors, 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 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, the Guarantors
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 Trustee relates and subject to Section
10.3 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 6.6.
(3) Upon request of any Person appointed hereunder as a successor
Trustee, the Company and the Guarantors shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts 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.
57
Section 6.10. 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 corporate agency or
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 6.11. 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 3.6, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent must 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
58
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 and each Guarantor (without duplication) agree 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 6.6.
The provisions of Sections 3.8, 6.3 and 6.4 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:
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
Xxxxx Fargo Bank, National Association,
as Trustee
By___________________________________________
As Authenticating Agent
By___________________________________________
Authorized Officer
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 Officer's 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.
59
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTORS AND COMPANY
Section 7.1. 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) semiannually with respect to Securities of each series not
later than May 1 and November 1 of the year 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,
provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
Section 7.2. 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 none of 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 7.3. Reports by Trustee.
(1) Within 60 days after September 15 of each year commencing with
the first September 15 following the first issuance of Securities pursuant
to Section 3.1, 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 September 15 with respect
to any of the events specified in said Section 313(a) which may have
occurred since the later of the immediately preceding September 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.
60
(3) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(e) and 313(d) of the
Trust Indenture Act.
Section 7.4. Reports by Company and the Guarantors.
The Company and the Guarantors, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company or the
Guarantors, as the case may be, are 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 the Guarantors, as the case may be, may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if the Company or the
Guarantors, 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 which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, 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 the Guarantors, 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 the Guarantors, 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 8
CONSOLIDATION, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not, in a single transaction or a series of related
transactions, consolidate with or merge into any other Person (whether or not
affiliated with the Company), or sell, assign, transfer, lease, convey or
otherwise dispose of (or cause or permit any Restricted Subsidiary to sell,
assign, transfer, lease, convey or otherwise dispose of) its properties and
assets
61
as an entirety or substantially as an entirety (determined on a consolidated
basis for the Company and its Restricted Subsidiaries) to any other Person,
unless:
(1) The Company shall be the surviving or continuing corporation
or in case the Company shall consolidate with or merge into another Person
or sell, assign, transfer, lease, convey or otherwise dispose of its
properties and assets as an entirety or substantially as an entirety to
any Person, the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by sale, assignment,
transfer, lease, conveyance or otherwise the properties and assets of the
Company as an entirety or substantially as an entirety shall be a
Corporation organized and existing under the laws of the United States of
America or any state thereof or the District of Columbia and shall
expressly assume, by an indenture (or indentures, if at such time there is
more than one Trustee) supplemental hereto, executed by the successor
Person and the Guarantors and delivered 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 Securities and the performance
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 before and after giving effect to such transaction
and treating any Debt which becomes an Obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default or event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) either the Company or the successor Person shall have
delivered to the Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture complies with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
Section 8.2. Successor Person Substituted for Company.
Upon any consolidation or amalgamation by the Company with or merger of
the Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety to any Person
in accordance with Section 8.1, the successor Person formed by such
consolidation or amalgamation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
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.
62
Section 8.3. Guarantors May Consolidate, Etc., Only on Certain Terms.
No Guarantors (other than any Guarantor whose Guarantee is to be released
in accordance with the terms of the Guarantee and Section 16.6 of this
Indenture) will, and the Company will not cause or permit any Guarantor to,
consolidate with or merge into or sell, assign, transfer, lease, convey or
otherwise dispose of its properties and assets as an entirety or substantially
as an entirety to any other Person (other than the Company or any other
Guarantor), unless:
(1) such Guarantors shall be the surviving or continuing
corporations or in case the Guarantors shall consolidate with or merge
into another Person or sell, assign, transfer, lease, convey or otherwise
dispose of its properties and assets as an entirety or substantially as an
entirety to any Person, the Person formed by such consolidation or into
which the Guarantors is merged or the Person which acquires by sale,
assignment, transfer, lease, conveyance or otherwise the properties and
assets of the Guarantors as an entirety or substantially as an entirety
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 the
successor Person and the Company and delivered 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 Securities and the performance
of every obligation in this Indenture and the Outstanding Securities on
the part of the Guarantors 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 or event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) either the Guarantors or the successor Person shall have
delivered to the Trustee a Guarantors' Officer's Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition 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 8.4. Successor Person Substituted for Guarantors.
Upon any consolidation or amalgamation by a Guarantor with or merger of a
Guarantor into any other Person or any conveyance, transfer or lease of the
properties and assets of any Guarantor substantially as an entirety to any
Person in accordance with Section 8.3, the successor Person formed by such
consolidation or amalgamation or into which the Guarantor is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, a Guarantor under this Indenture
with the same effect as if such successor Person had been named as a Guarantor
herein; and thereafter, except in the case
63
of a lease, the predecessor Person shall be released from all obligations and
covenants under this Indenture, the Securities and the Coupons.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the Company
(when authorized by or pursuant to a Board Resolution) and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or
the Guarantors, and the assumption by any such successor of the covenants
of the Company or the Guarantors, as the case may be, contained herein and
in the Securities; or
(2) to add to the covenants of the Company or the Guarantors, as
the case may be, 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 or the Guarantors, as the case may be; or
(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 form, provided any
such action shall not materially adversely affect the interests of the
Holders of Outstanding Securities of any series or any Coupons
appertaining thereto in any material respect; or
(4) to establish the form or terms of Securities of any series and
any Coupons appertaining thereto as permitted by Sections 2.1 and 3.1; or
(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 6.9; or
(6) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture 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; or
64
(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; or
(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); or
(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 4, provided that
any such action shall not adversely affect the interests of any Holder of
an Outstanding Security of such series and any Coupons appertaining
thereto or any other Outstanding Security or Coupon in any material
respect; or
(10) to secure the Securities pursuant to Section 10.5 or
otherwise; or
(11) to make provisions with respect to conversion or exchange
rights of Holders of Securities of any series; or
(12) to amend or supplement any provision contained herein or in
any supplemental indenture, provided that no such amendment or supplement
shall materially adversely affect the interests of the Holders of any
Securities then Outstanding.
Section 9.2. 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 and the
Trustee, the Company (when authorized by or pursuant to a Company's Board
Resolution) and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture or of the Securities of such series; provided, however,
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 any premium
or installment of interest on or any Additional Amounts 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 and the
Guarantors to pay Additional Amounts pursuant to the terms hereof (except
as contemplated by Section 8.1(1) and permitted by Section 9.1(1)), or
reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2 or the amount thereof provable in
bankruptcy pursuant to Section 5.4, change the redemption provisions or
the right of repayment at the option of any Holder as contemplated by
Article 13, in either case, in a manner adverse to the Holder, or change
the Place of Payment, Currency in which the principal of, any premium or
interest on, or any Additional Amounts with
65
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 15.4 for quorum or
voting, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.9, 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 to convert or
exchange any Security into or for securities of the Company or the
Guarantors or other securities (whether or not issued by the Company or
the Guarantors), cash or property in accordance with its terms, or
(5) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise in accordance with the terms of this
Indenture, or
(6) modify any of the above provisions.
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 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 9.3. 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 Section 315 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 and an
Officer's Certificate and Guarantors' Officer's Certificate stating that all
conditions precedent to the execution of such supplemental indenture have been
fulfilled. 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.
66
Section 9.4. 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 9.5. 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 9.6. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.7. Notice of Supplemental Indenture.
Promptly after the execution by the Company, the Guarantors and the
Trustee of any supplemental indenture pursuant to Section 9.2, 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.
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any 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.
All payment of principal of, any premium and interest on, and any Additional
Amounts with respect to the Securities of each Series that are payable in a
Foreign Currency that ceases to be used by the government or governments of
issuance shall be made in U.S. Dollars.
67
Section 10.2. Maintenance of Office or Agency.
The Company and the Guarantors 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 the Guarantors in respect of
the Securities of such series relating thereto and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the Company and the
Guarantors 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 Stock
Exchange of the United Kingdom and the Republic of Ireland or the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company and the Guarantors shall
maintain a Paying Agent in London, Luxembourg or any other required city located
outside the United States so long as the Securities of such series are listed on
such exchange. The Company and the Guarantors 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 or the Guarantors 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 the Guarantors hereby appoint the Trustee as their 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 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 and the Guarantors
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
and the Guarantors in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company and the Guarantors 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 or the Guarantors of its
obligation to maintain an Office or Agency in each Place of
68
Payment for Securities of any series for such purposes. The Company and the
Guarantors 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 and the Guarantors hereby designate as the Place of Payment for each
series of Securities the Borough of Manhattan, The City of New York, and
initially appoint the Corporate Trust Office of the Trustee as the Office or
Agency of the Company in the Borough of Manhattan, The City of New York for such
purpose. The Company and the Guarantors may subsequently appoint a different
Office or Agency in the Borough of Manhattan, The City of New York for the
Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, 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 10.3. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, or if the
Guarantors shall act as 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 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, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.1 for the Securities of
such series) sufficient to pay 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, 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, currency unit or units or composite 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.
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;
69
(2) give the Trustee notice of any default by the Company or the
Guarantors (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 or the Guarantors 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 or Guarantor's Order direct any Paying Agent
to pay, to the Trustee all sums held in trust by the Company, the Guarantors 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, the Guarantors 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 or
the Guarantors, 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 any such premium or interest or any such Additional Amounts
shall have become due and payable shall be paid to the Company on Company
Request (or if deposited by the Guarantors, paid to the Guarantors on
Guarantor's Request), or (if then held by the Company or the Guarantors) 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 and the Guarantors for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company and the Guarantors 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 or the Guarantors, as the case may be.
Section 10.4. 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
70
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 the applicable 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 Officer's Certificate, the Company
shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if
other than the Trustee, an Officer's Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, or interest 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 Officer's
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 Officer's Certificate furnished pursuant to this
Section 10.4.
Section 10.5. Limitation on Liens.
The Company covenants and agrees for the benefit of each series of
Securities, other than any series established in or pursuant to a Board
Resolution or in one or more indentures supplemental hereto which specifically
provides otherwise, that the Company will not, nor will it permit any Restricted
Subsidiary to, at any time create, incur, assume or guarantee any Debt secured
by any mortgage, pledge, lien, security interest or other encumbrance ("Lien")
on any property (including shares of Capital Stock or Debt) of the Company or of
any Restricted Subsidiary, whether now owned or hereafter acquired, without in
any such case effectively providing, concurrently with the creation, incurrence,
assumption or guarantee of such Debt, that the Securities of the applicable
series then Outstanding shall, so long as any such other Debt shall be so
secured (and, if the Company shall so determine, any other existing Debt (or
Debt thereafter in existence) created, incurred, assumed or guaranteed by the
Company or any Restricted Subsidiary), be secured by any such Lien equally and
ratably with or prior to any and all other Debt thereby secured, provided,
however, that the foregoing covenant shall not be applicable to the following:
(a) All Liens on property of the Company or any Restricted
Subsidiary existing on the date of original issuance by the Company of the
applicable series of Securities issued pursuant to this Indenture or such
other date as may be specified in or
71
pursuant to a Board Resolution and set forth in an Officer's Certificate,
or in one or more indentures supplemental hereto pursuant to which such
series is established; or
(b) Liens on property acquired by the Company or any Restricted
Subsidiary (including acquisition through merger or consolidation);
provided that such Liens were in existence prior to and were not created
in contemplation of such acquisition and shall not extend to any other
property of the Company or any Restricted Subsidiary; or
(c) Liens on any property (including, in the case of a plant or
facility, the land on which it is erected and fixtures comprising a part
thereof) of the Company or any Restricted Subsidiary securing the payment
of all or any part of the purchase price or construction cost thereof or
securing any Debt created, incurred, assumed or guaranteed prior to, at
the time of or within 120 days after the latest of the acquisition of such
property or the completion of such construction, for the purpose of
financing all or any part of the purchase price or construction cost
thereof (provided, in the case of Liens securing the payment of all or any
part of the purchase price of any property of the Company or any
Restricted Subsidiary, as the case may be, or securing any Debt created,
incurred, assumed or guaranteed for the purposes of financing all or any
part of such purchase price, such Liens are limited to the property then
being acquired and fixed improvements thereon and the Capital Stock of any
Person formed to acquire such property and provided further in the case of
Liens securing the payment of all or any part of the construction cost of
any property of the Company or any Restricted Subsidiary, as the case may
be, or securing any Debt created, incurred, assumed or guaranteed for the
purpose of financing all or any part of such construction cost, such Liens
are limited to the assets or property then being constructed and the land
on which such property is erected and fixtures comprising a part thereof);
or
(d) Liens on any property to secure all or any part of the cost of
development, construction, alteration, repair or improvement of all or any
part of such property, or to secure Debt created, incurred, assumed or
guaranteed prior to, at the time of or within 120 days after the latest of
the completion of such development, construction, alteration, repair or
improvement, for the purpose of financing all or any part of such cost
(provided such Liens do not extend to or cover any property of the Company
or any Restricted Subsidiary other than the property then being developed,
constructed, altered, repaired or improved and the land on which such
property is erected and fixtures comprising a part thereof); or
(e) Liens in favor of the Company or a Restricted Subsidiary
securing Debt of the Company or a Restricted Subsidiary; or
(f) Liens created in connection with tax assessments or legal
proceedings and mechanics' liens and materialmen's liens and other similar
liens created in the ordinary course of business; or
(g) Liens on property of the Company or any Restricted Subsidiary
(except property consisting of the Capital Stock or Debt of the Company or
any Restricted Subsidiary) in favor of the United States of America or any
State thereof, or any
72
department, agency or instrumentality or political subdivision of the
United States of America or any State thereof, or in favor of any other
country, or any department, agency or instrumentality or political
subdivision thereof, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any Debt
created, incurred, assumed or guaranteed for the purpose of financing all
or any part of the purchase price or the cost of construction or
improvement of the property subject to such Liens (including, but not
limited to, Liens created in connection with pollution control, industrial
revenue bond or similar financings); or
(h) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Lien
referred to in the foregoing subparagraphs (a) through (g); provided that
any of the foregoing are limited to the same property subject to, and
securing no more Debt than the Lien so extended, renewed or replaced.
Notwithstanding the foregoing provisions of this Section 10.5, the Company
and any Restricted Subsidiary may create, incur, assume or guarantee Debt of the
Company or any Restricted Subsidiary which would otherwise be subject to the
foregoing restrictions, without equally and ratably securing the applicable
series of Securities, if the aggregate principal amount of all Debt secured by
Liens on property (including shares of Capital Stock or Debt) of the Company and
of any Subsidiary then outstanding (not including Debt permitted to be secured
under subparagraphs (a) through (h) above), plus Attributable Debt of the
Company and its Subsidiaries in respect of Sale/Leaseback Transactions that
would otherwise be subject to the restrictions set forth in Section 10.6, does
not at the time such Debt is created, incurred, assumed or guaranteed exceed 10%
of Consolidated Net Tangible Assets.
If a secured revolving credit facility is established or increased without
equally and ratably securing outstanding Securities in compliance with the
immediately preceding paragraph, then all subsequent borrowings under such
revolving credit facility shall be deemed to be permissible under this Section
10.5.
For the purposes of this Section 10.5, the creation of a Lien on property
(including shares of Capital Stock or Debt) of the Company or of any Restricted
Subsidiary to secure Debt which existed prior to the creation of such Lien shall
be deemed to involve the creation of Debt secured by a Lien in an amount equal
to the principal amount secured by such Lien.
Section 10.6. Limitation on Sale/Leaseback Transactions.
The Company covenants and agrees for the benefit of each series of
Securities, other than any series established in or pursuant to a Board
Resolution or in one or more indentures supplemental hereto which specifically
provides otherwise, that neither the Company nor any Restricted Subsidiary will
enter into any Sale/Leaseback Transaction after the date of the original
issuance by the Company of the applicable series of Securities issued pursuant
to this Indenture, or such other date as may be specified in or pursuant to a
Board Resolution and set forth in an Officer's Certificate, or in one or more
indentures supplemental hereto pursuant to which such series is established,
with any Person (other than the Company or a Restricted Subsidiary) providing
for a term of more than three years unless:
73
(a) the Company or such Restricted Subsidiary would be permitted,
pursuant to the terms of Section 10.5, to incur Debt in a principal amount
equal to or exceeding the Attributable Debt in respect of such
Sale/Leaseback Transaction secured by a Lien on the property subject to
such Sale/Leaseback Transaction without equally and ratably securing the
applicable series of Securities; or
(b) since the date of this Indenture and within a period
commencing six months prior to the consummation of the Sale/Leaseback
Transaction and ending six months after the consummation thereof, the
Company or such Restricted Subsidiary has expended or will expend for any
property (including amounts expended for the acquisition thereof, or for
additions, alterations, improvements or repairs thereto) an amount up to
the net proceeds of such Sale/Leaseback Transaction, and the Company
elects to designate such amount as a credit against such Sale/Leaseback
Transaction (with any amount of such net proceeds not being so designated
to be applied as set forth in paragraph (c) below); or
(c) the Company, during or immediately after the expiration of the
12-month period following the consummation of the Sale/Leaseback
Transaction, applies or causes such Restricted Subsidiary to apply to the
voluntary retirement, redemption or defeasance of Securities of any series
or other Funded Debt of the Company (other than Funded Debt subordinated
to the Securities) or Funded Debt of such Restricted Subsidiary an amount
equal to the greater of (i) the net proceeds of the Sale/Leaseback
Transaction and (ii) the fair value, in the opinion of the Board of
Directors of the Company, of the subject property of the Sale/Leaseback
Transaction at the time of such transaction (adjusted, in either case, to
reflect the remaining term of the lease and any amount applied pursuant to
paragraph (b) above), less an amount equal to the principal amount of any
such Funded Debt of the Company or such Restricted Subsidiary, other than
Securities, voluntarily retired by the Company or such Restricted
Subsidiary during such 12-month period.
"Sale/Leaseback Transaction" means any arrangement providing for the
leasing to the Company or any Restricted Subsidiary by any Person (other than
the Company or a Restricted Subsidiary) of any property which has been, or is to
be, sold or transferred by the Company or such Restricted Subsidiary to such
Person or to any Person (other than the Company or a Restricted Subsidiary) to
which funds have been or are to be advanced by such Person on the security of
the leased property.
Section 10.7. Issuance of Subsidiary Guarantees.
The Company shall not cause or permit any of its Restricted Subsidiaries,
directly or indirectly, to guarantee any Debt of the Company unless such
Restricted Subsidiary:
(1) executes and delivers to the Trustee a supplemental indenture
in form reasonably satisfactory to the Trustee pursuant to which such
Restricted Subsidiary shall unconditionally Guarantee all of the Company's
obligations under the Securities and this Indenture on the terms set forth
in this Indenture; and
74
(2) delivers to the Trustee an Opinion of Counsel (which may
contain customary exceptions) that such supplemental indenture has been
duly authorized, executed and delivered by such Restricted Subsidiary and
constitutes a legal, valid, binding and enforceable obligation of such
Restricted Subsidiary.
Thereafter, such Restricted Subsidiary shall be a Guarantor for all
purposes of this Indenture until such Guarantee is released in accordance with
the provisions of Article 16. The Company may cause any other Restricted
Subsidiary to issue a Guarantee and become a Guarantor.
Section 10.8. Corporate Existence.
Subject to Article 8, the Company and the Guarantors shall do or cause to
be done all things necessary to preserve and keep in full force and effect their
respective corporate existences and that of each of their respective
Subsidiaries and their respective rights (charter and statutory) and franchises;
provided, however, that the foregoing shall not obligate the Company or the
Guarantors or any of their respective Subsidiaries to preserve any such right or
franchise if the Company, the Guarantors or any such Subsidiary shall determine
that the preservation thereof is no longer desirable in the conduct of its
business or the business of such Subsidiary and that the loss thereof is not
disadvantageous in any material respect to any Holder.
Section 10.9. Waiver of Certain Covenants.
The Company or the Guarantors, as the case may be, may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 10.5, 10.6 or 10.7 with respect to the Securities of any 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 Guarantors and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
Section 10.10. Company Statement as to Compliance; Notice of Certain
Defaults.
(1) 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 Officer's Certificate) signed by the
principal executive officer, the principal financial officer or the
principal accounting officer of the Company, stating that
(a) a review of the activities of the Company and its
Subsidiaries during such year and of its performance under this
Indenture has been made under his or her supervision, and
(b) to the best of his or her knowledge, based on such
review, (i) the Company and each Guarantor have complied with all
the conditions and covenants imposed on it under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying
75
each such default known to him or her and the nature and status
thereof, and (ii) no event has occurred and is continuing which is,
or after notice or lapse of time or both would become, an Event of
Default, or, if such an event has occurred and is continuing,
specifying each such event known to him or her and the nature and
status thereof.
(2) The Company and each Guarantor shall deliver to the Trustee,
within five days after the occurrence thereof, written notice of any Event
of Default or any event which after notice or lapse of time or both would
become an Event of Default pursuant to clause (4) of Section 5.1.
(3) The Trustee shall have no duty to monitor the Company's
compliance with the covenants contained in this Article 10 other than as
specifically set forth in this Section 10.10.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
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 11.2. 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 (a) less than all of the Securities of any series or (b) all of
the Securities of any series, with the same issue date, interest rate or
formula, Stated Maturity and other terms, 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.
Section 11.3. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue date,
interest rate or formula, Stated Maturity and other 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 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 Registered Security of such series not
redeemed to less than the minimum denomination for a Security of such series
established herein or pursuant hereto.
76
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 into other securities of the Company before termination of the
conversion right with respect to the portion of the Security so selected, the
converted 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.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 1.6,
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,
77
(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 Guarantors, the Trustee and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and no
Registered Securities of such series are to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on the Redemption Date pursuant to Section 3.5 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
into Common Stock of the Company or exchangeable for 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 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 1.6 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 11.5. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company or the Guarantors shall
deposit, with respect to the Securities of any series called for redemption
pursuant to Section 11.4, with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent or the Guarantors are acting as Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money in the applicable Currency sufficient to pay the Redemption Price of, and
78
(except if the Redemption Date shall be an Interest Payment Date, unless
otherwise specified pursuant to Section 3.1 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 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company and the Guarantors shall default in the payment of the Redemption Price
and accrued interest) 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 any accrued interest and Additional Amounts to 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 10.2), and 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 3.7.
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 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 10.2.
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.
79
Section 11.7. 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 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 U.S. Depository
or other 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.
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise 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 12.2. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series and this Indenture.
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.
The Company or the Guarantors 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 series of Securities have not been
80
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 12.2, the principal amount of Securities of such series to be redeemed
in order to satisfy the remaining sinking fund payment shall be less than
$100,000, the Trustee need not call Securities of such series for redemption,
except upon Company Request or Guarantors' 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 or the Guarantors from time to time pay over
and deliver to the Company or the Guarantors, as the case may be, any cash
payment so being held by the Trustee or such Paying Agent upon delivery by the
Company or the Guarantors to the Trustee of Securities of that series purchased
by the Company or the Guarantors having an unpaid principal amount equal to the
cash payment requested to be released to the Company.
Section 12.3. 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 Officer's
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 12.2, 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 Officer's 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 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. 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 3.9, 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
13.1, in connection with any repayment of Securities, the
81
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 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or 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 action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company or the Guarantors may
specify in a written notice to the Trustee.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
82
Section 15.2. 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 15.1, 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 1.6, 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), the Guarantors (by or pursuant to a Guarantors' 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 15.1, 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 1.6) or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company, the Guarantors or the Holders of Securities of such
series in the amount above specified 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.
Section 15.3. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (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, any representatives of the Guarantors and their counsel
and any representatives of the Company and its counsel.
Section 15.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for any meeting of
Holders of Securities of such series. 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
83
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
reconvened meeting, such reconvened 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 reconvened meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 15.2(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 9.2, 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 9.2, 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.
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 15.5. 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 1.4 and the appointment of any
proxy shall be proved in the manner specified in Section 1.4 or by having
the signature of the person executing the proxy witnessed or guaranteed by
any trust company, bank or banker authorized by Section 1.4 to certify to
the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 1.4 or
other proof.
(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
15.2(2), in which case the Company, the Guarantors or the Holders of
Securities of the series calling the meeting shall in like manner appoint
a temporary chairman. A permanent chairman and a permanent secretary
84
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. 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 15.2 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without further
notice.
Section 15.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities 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 15.2 and, if
applicable, Section 15.4. 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 the Guarantors, 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 16
GUARANTEES
Section 16.1. The Unconditional Guarantee.
Each Guarantor hereby unconditionally, jointly and severally, guarantees
to each Holder of a Security authenticated by the Trustee and to the Trustee and
its successors and assigns that the principal of, premium thereon (if any) and
interest on the Securities will be promptly paid in full when due, subject to
any applicable grace period, whether at maturity, by acceleration or otherwise,
and interest on the overdue principal and interest on any overdue interest on
the
85
Securities and all other obligations of the Company to the Holders or the
Trustee hereunder or under the Securities will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; subject,
however, to the limitations set forth in Section 16.3 hereof. Each Guarantor
hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities or
this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that the Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities and this Indenture. If any Holder or the
Trustee is required by any court or otherwise to return to the Company, any
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or any Guarantor, any amount paid by the
Company or any Guarantor to the Trustee or such Holder, each Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between a Guarantor, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations Guaranteed hereby may be accelerated as provided in Article 5 hereof
for the purpose of each Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article 5 hereof, such obligations (whether or not due and
payable) shall become due and payable by each Guarantor for the purpose of each
Guarantee.
Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this Article 16.
Section 16.2. Severability.
In case any provision of this Article 16 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 16.3. Limitation of Guarantors' Liability.
(a) To the extent applicable, a Guarantor's liability in F respect
of its Guarantee shall be limited to the extent set forth below:
(1) Limitations Applicable to U.S. Guarantors. Each
Guarantor that is incorporated, organized or formed, as the case may
be, under the laws of the United States, any State thereof or the
District of Columbia (a "U.S. Guarantor"), and by its acceptance
hereof, each Holder and the Trustee, hereby confirm that it is the
intention of all such parties that the Guarantee of a U.S. Guarantor
does not constitute a fraudulent transfer or conveyance for purposes
of Title 11 of the United States Code, as amended, the Uniform
Fraudulent Conveyance Act, the
86
Uniform Fraudulent Transfer Act or any similar U.S. Federal or state
or other applicable law. To effectuate the foregoing intention, each
Holder and each U.S. Guarantor hereby irrevocably agree that the
obligations of a U.S. Guarantor under its Guarantee shall be limited
to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such U.S. Guarantor, result in
the obligations of such U.S. Guarantor not constituting such a
fraudulent transfer or conveyance.
(2) Limitations Applicable to Other Guarantors. Each
Guarantor that is incorporated, organized or formed, as the case may
be, under the laws of any jurisdiction other than one set forth in
clause (1) above (an "Other Guarantor"), and by its acceptance
hereof, each Holder and the Trustee, hereby confirm that it is the
intention of all such parties that the Guarantee of an Other
Guarantor does not constitute a fraudulent transfer or conveyance
for purposes of applicable law. To effectuate the foregoing
intention, each Holder and each Other Guarantor hereby irrevocably
agree that the obligations of an Other Guarantor under its Guarantee
shall be limited to the maximum amount as will, after giving effect
to all other contingent and fixed liabilities of such Other
Guarantor, result in the obligations of such Other Guarantor not
constituting such a fraudulent transfer or conveyance.
(b) If, following the date of this Indenture and notwithstanding
anything in Section 9.2 to the contrary:
(1) (i) there shall be any change in the laws of the
jurisdiction set forth in clause (1) of subsection (a) of this
Section 16.3 or (ii) any Restricted Subsidiary incorporated,
organized or formed, as the case may be, under the laws of any
jurisdiction other than one set forth in clause (1) of subsection
(a) of this Section 16.3 (a "Future Guarantor") shall be required to
execute a Guarantee and the Company shall reasonably determine that
clause (2) with respect to Other Guarantors shall not adequately
address the limitations on such Guarantee imposed by applicable law
of the jurisdiction of incorporation, organization or formation, as
the case may be, of any such Future Guarantor; or
(2) the Company shall reasonably determine that it shall be
necessary or advisable to amend the terms of clause (1) of
subsection (a) of this Section 16.3 or to add additional provisions
related to the limitations imposed on the Guarantee of a Future
Guarantor,
then upon the delivery of an Officers' Certificate and Opinion of Counsel
reasonably satisfactory to the Trustee, the Company shall be entitled to
amend such clauses or add such additional provisions (including any
related modifications to the form of Guarantee attached hereto in Exhibit
A ), as the case may be, in order for the Guarantee of a Guarantor not to
so violate applicable law.
Notwithstanding any other provision of this Indenture, stock of any
foreign entity directly held by a Guarantor shall not serve as security for any
of the Securities issued under this
87
Indenture, other than stock of any such foreign entity representing no more than
65% of the total combined voting power of all classes of stock of such entity
entitled to vote.
Section 16.4. Successors and Assigns.
This Article 16 shall be binding upon each Guarantor and its successors
and assigns and shall ensure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges conferred upon
that party in this Indenture and in the Securities shall automatically extend to
and be vested in such transferee or assignee, all subject to the terms and
conditions of this Indenture.
Section 16.5. No Waiver.
Neither a failure nor a delay on the part of either the Trustee or the
Holders in exercising any right, power or privilege under this Article 16 shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise of any right, power or privilege. The
rights, remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies or
benefits which either may have under this Article 16 at law, in equity, by
statute or otherwise.
Section 16.6. Release of Guarantor.
A Guarantor shall be released from all of its obligations under its
Guarantee:
(a) in connection with any sale or other disposition of all of the
Capital Stock of such Guarantor to a Person other than the Company or any
Subsidiary of the Company;
(b) in connection with the sale or other disposition of all or
substantially all of the assets of such Guarantor, including by way of
merger, consolidation or otherwise, to a Person other than the Company or
any Subsidiary of the Company;
(c) in the case of any Restricted Subsidiary which after the Issue
Date is required to Guarantee the Securities pursuant to Section 10.7,
upon the release or discharge of the guarantee of such Restricted
Subsidiary of Debt of the Company which resulted in the obligation to so
Guarantee the Securities; or
(d) upon the release of such Guarantor from all of its obligations
under its guarantee granted in favor of the lenders under the Credit
Agreement.
Section 16.7. Execution of Supplemental Indenture for Future Guarantors.
Each Subsidiary which is required to become a Guarantor shall, and the
Company shall cause each such Subsidiary to, promptly execute and deliver to the
Trustee a supplemental indenture substantially in the form of Exhibit B hereto
pursuant to which such Subsidiary shall become a Guarantor under this Article 16
and shall guarantee the obligations of the Company under the Securities and this
Indenture. Concurrently with the execution and delivery of such
88
supplemental indenture, the Company shall deliver to the Trustee an Opinion of
Counsel to the effect that such supplemental indenture has been duly authorized,
executed and delivered by such Subsidiary and that, subject to the application
of bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and
other similar laws relating to creditors' rights generally and to the principles
of equity, whether considered in a proceeding at law or in equity, the Guarantee
of such Guarantor is a legal, valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms.
Section 16.8. Execution and Delivery of Guarantee.
To evidence the Guarantee set forth in this Article 16, each Guarantor
hereby agrees that a notation of such Guarantee shall be placed on each Security
authenticated and made available for delivery by the Trustee and that this
Guarantee shall be executed on behalf of each Guarantor by the manual or
facsimile signature of an Officer of each Guarantor. Each Guarantor hereby
agrees that the Guarantee set forth in Section 16.1 hereof shall remain in full
force and effect notwithstanding any failure to endorse on each Security a
notation of such Guarantee. If an Officer of a Guarantor whose signature is on
the Guarantee no longer holds that office at the time the Trustee authenticates
the Security on which the Guarantee is endorsed, the Guarantee shall be valid
nevertheless. The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
set forth in this Indenture on behalf of each Guarantor.
Section 16.9. Subordination of Subrogation and Other Rights.
Each Guarantor hereby agrees that any claim against the Company that
arises from the payment, performance or enforcement of such Guarantor's
obligations under the Guarantee or this Indenture, including, without
limitation, any right of subrogation, shall be subject and subordinate to, and
no payment with respect to any such claim of such Guarantor shall be made
before, the payment in full in cash of all outstanding Securities in accordance
with the provisions provided therefor in this Indenture.
89
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the day and year first above written.
THE LUBRIZOL CORPORATION
Attest:
By___________________________________________
Name:
Title:
0000 XXXX XXXXXXXXX XXXXXXXXXXX
By___________________________________________
Name:
Title:
XXXXXXX SCIENTIFIC INC.
By___________________________________________
Name:
Title:
CHEMRON CORPORATION
By___________________________________________
Name:
Title:
CPI ENGINEERING SERVICES, INC.
By___________________________________________
Name:
Title:
90
ENGINE CONTROL SYSTEMS LTD.
By___________________________________________
Name:
Title:
GATEWAY ADDITIVE COMPANY
By___________________________________________
Name:
Title:
LUBRICANT INVESTMENTS, INC.
By___________________________________________
Name:
Title:
LUBRIZOL CHINA, INC.
By___________________________________________
Name:
Title:
LUBRIZOL ENTERPRISES, INC.
By___________________________________________
Name:
Title:
91
LUBRIZOL FOAM CONTROL ADDITIVES, INC.
By___________________________________________
Name:
Title:
LUBRIZOL INTER-AMERICAS CORPORATION
By___________________________________________
Name:
Title:
LUBRIZOL INTERNATIONAL MANAGEMENT CORPORATION
By___________________________________________
Name:
Title:
LUBRIZOL OVERSEAS TRADING CORPORATION
By___________________________________________
Name:
Title:
LUBRIZOL PERFORMANCE SYSTEMS INC.
By___________________________________________
Name:
Title:
92
MPP PIPELINE CORPORATION
By___________________________________________
Name:
Title:
NOVEON INTERNATIONAL, INC.
By___________________________________________
Name:
Title:
NOVEON, INC.
By___________________________________________
Name:
Title:
FCC ACQUISITION CORP.
By___________________________________________
Name:
Title:
NOVEON CHINA, INC.
By___________________________________________
Name:
Title:
NOVEON DIAMALT, INC.
By___________________________________________
Name:
Title:
93
NOVEON FCC, INC.
By___________________________________________
Name:
Title:
NOVEON HILTON DAVIS, INC.
By___________________________________________
Name:
Title:
NOVEON HOLDING CORPORATION
By___________________________________________
Name:
Title:
NOVEON IP HOLDINGS CORP.
By___________________________________________
Name:
Title:
NOVEON KALAMA, INC.
By___________________________________________
Name:
Title:
NOVEON TEXTILE CHEMICALS, INC.
By___________________________________________
Name:
Title:
94
PERFORMANCE MATERIALS I INC.
By___________________________________________
Name:
Title:
Attest: XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By___________________________________________
Name:
Title:
95
SCHEDULE A
GUARANTORS
1500 Xxxx Xxxxxxxxx Corporation
Xxxxxxx Scientific Inc.
Chemron Corporation
CPI Engineering Services, Inc.
Engine Control Systems Ltd.
Gateway Additive Company
Lubricant Investments, Inc.
Lubrizol China, Inc.
Lubrizol Enterprises, Inc.
Lubrizol Foam Control Additives, Inc.
Lubrizol Inter-Americas Corporation
Lubrizol International Management Corporation
Lubrizol Overseas Trading Corporation
Lubrizol Performance Systems Inc.
MPP Pipeline Corporation
Noveon International, Inc.
Noveon, Inc.
FCC Acquisition Corp.
Noveon China, Inc.
Noveon Diamalt, Inc.
Noveon FCC, Inc.
Noveon Hilton Davis, Inc.
Noveon Holding Corporation
Noveon IP Holdings Corp.
Noveon Kalama, Inc.
Noveon Textile Chemicals, Inc.
Performance Materials I Inc.
Sch. A-1
EXHIBIT A
FORM OF GUARANTEE
Each Guarantor (capitalized terms used herein have the meanings
given such terms in the Indenture referred to in the Security upon which this
notation is endorsed) hereby unconditionally guarantees on a senior subordinated
basis (such guarantee being referred to herein as the "Guarantee") the due and
punctual payment of the principal of, premium, if any, and interest on the
Securities, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal, premium and interest on
the Securities, and the due and punctual performance of all other obligations of
the Company to the Holders or the Trustee, all in accordance with the terms set
forth in Article 16 of the Indenture.
This Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Securities upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
By: _________________________________________
Name:
Title:
By: _________________________________________
Name:
Title:
Exh. A
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
, among (the "New Guarantor"), a subsidiary of THE LUBRIZOL
CORPORATION (or its successor), an Ohio corporation (the "Company"), the
Guarantors (the "Existing Guarantors") under the Indenture referred to below,
and Xxxxx Fargo Bank, National Association, as trustee under the Indenture
referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS the Company has heretofore executed and delivered to the
Trustee an Indenture (as such may be amended from time to time, the
"Indenture"), dated as of [ ], providing for the issuance of its [ ]
(the "Securities");
WHEREAS Section 16.7 of the Indenture provides that under certain
circumstances the Company is required to cause the New Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all of the Company's obligations under
the Securities pursuant to a Guarantee on the terms and conditions set forth
herein; and
WHEREAS pursuant to Section 9.1 of the Indenture, the Trustee, the
Company and Existing Guarantors are authorized to execute and deliver this
Supplemental Indenture;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Definitions. (a) Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
(b) For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires:
(i) the terms and expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture; and (ii) the words
"herein," "hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
2. Agreement to Guarantee. The New Guarantor hereby agrees,
jointly and severally with all other Guarantors, to Guarantee the Company's
obligations under the Notes on the terms and subject to the conditions set forth
in Article 16 of the Indenture and to be bound by all other applicable
provisions of the Indenture. From and after the date hereof, the New Guarantor
shall be a Guarantor for all purposes under the Indenture and the Securities.
Exh. B-1
3. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every Holder heretofore or hereafter
authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH OF
THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
SUPPLEMENTAL INDENTURE.
5. Trustee Makes No Representation. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect of the recitals
contained herein, all of which are made solely by the Company.
6. Multiple Counterparts. The parties may sign multiple
counterparts of this Supplemental Indenture. Each signed counterpart shall be
deemed an original, but all of them together represent one and the same
agreement.
7. Headings. The headings of this Supplemental Indenture have
been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Exh. B-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date and year first above written.
[NEW GUARANTOR]
By: _________________________________________
Name:
Title:
THE LUBRIZOL CORPORATION
By: _________________________________________
Name:
Title:
EXISTING GUARANTORS:
By: _________________________________________
Name:
Title:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By: _________________________________________
Name:
Title:
Exh. B-3
