EXHIBIT 4.3
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TELIGENT, INC.
TO
FIRST UNION NATIONAL BANK,
Trustee
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Form of Senior Indenture
Dated as of
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SENIOR INDENTURE, dated as of , by and
between TELIGENT, INC., a corporation duly
organized and existing under the laws of the
State of Delaware (herein called the "Company"),
having its principal office at 0000 Xxxxxxxx
Xxxx, Xxxxxx, XX 00000 and FIRST UNION NATIONAL
BANK, a national banking association (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
Securities, notes, bonds or other evidences of indebtedness, to be issued in
one or more fully registered series.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary have been done to make this Indenture a
valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Securities are to be authenticated, issued and delivered, and in
consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of the respective Holders from time to time of the
Securities or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture and of any indenture
supplemental hereto, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction"
and "self-liquidating paper", as used in TIA Section 311, shall have
the meanings assigned to them in the rules of the Commission adopted
under the Trust Indenture Act; and
(c) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Company in respect of
certain taxes imposed on certain Holders and which are owing to such Holders.
"Affiliate" means, as to any Person, any other Person that
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (including,
with its correlative meanings, "controlled by" and "under common control
with") shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies of such Person (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise), provided that, in any event, unless otherwise
specified in a supplemental indenture, any Person that owns directly or
indirectly 10% of more of the securities having ordinary voting power for the
election of directors or other governing body of a corporation or 10% or more
of the partnership or other ownership interests of any other Person (other
than as a limited partner of such other Person) shall be deemed to control
such corporation or other Person. Notwithstanding the foregoing, no individual
shall be deemed to be an Affiliate of a Person solely by reason of his or her
being an officer or director (or equivalent) of such Person.
"Authenticating Agent" means any person authorized by the
Trustee to authenticate Securities under Section 615.
"Bearer Security" means any Security established pursuant to
Section 301 which is payable to bearer.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in the Borough of
Manhattan, The City of New York are authorized or obligated by law or
executive order to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this 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.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by an officer of the Company, and
delivered to the Trustee.
"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 execution of this
Indenture is located at Corporate Trust (VA- 3279), 000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000 except that, with respect to presentation of
Securities for payment or for registration of transfer or exchange, such term
shall mean the office or agency of the Trustee at which, at any particular
time, its corporate agency business shall be conducted.
"Debt" means indebtedness for money borrowed, unless otherwise
specified in a supplemental indenture.
"Default" means any event, act or condition the occurrence of
which is, or after notice or the passage of time or both would be, an Event of
Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, unless otherwise specified by the Company
pursuant to either Section 204 or 301, with respect to Securities of any
series issuable or issued as a Global Security, The Depository Trust Company,
New York, New York, or any successor thereto registered as a clearing agency
under the Exchange Act or other applicable statute or regulation.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934.
"Global Security" means, with respect to any series of
Securities issued hereunder, a Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to
the Depositary's instruction, all in accordance with this Indenture and an
indenture supplemental hereto, if any, or Board Resolution and pursuant to a
Company Request, which shall be registered in the name of the Depositary or
its nominee and which shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all of the Outstanding Securities
of such series or any portion thereof, in either case having the same terms,
including, without limitation, the same original issue date, date or dates on
which principal is due, and interest rate or method of determining interest.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture"or "this Indenture" means this instrument as
originally executed or as it may from time to time be supplemented or amended
by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue
Discount Security by which its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any series
of Securities, means the Stated Maturity of any installment of interest on
those Securities.
"Maturity", when used with respect to any Securities, means the
date on which the principal of such Security becomes due and payable as
provided therein or herein, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors, a Vice Chairman of the Board of Directors,
the President or a Vice President, and by the Chief Financial Officer, the
Chief Accounting Officer, the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee, which
certificate shall comply with this Indenture.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company and who shall be reasonably
acceptable to the Trustee.
"Original Issue Discount Security" means (i) any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration for acceleration of the Maturity thereof, and (ii)
any other Security deemed an Original Issue Discount Security for United
States Federal income tax purposes.
"Outstanding", when used with respect to Securities of any
series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancelation;
(ii) such Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor reasonably satisfactory to the Trustee has been
made;
(iii) Securities, except to the extent expressly provided in
Sections 1202 and 1203, with respect to which the Company has
effected defeasance or covenant defeasance as provided in Article
Twelve; and
(iv) Securities that have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands the
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request,
demand, authorization, direction, consent, notice or waiver hereunder, (i) the
principal amount of any Original Issue Discount Security that shall be deemed
to be Outstanding shall be the amount of the principal thereof that would be
due and payable as of the date of the taking of such action upon a declaration
of acceleration of the Maturity thereof and (ii) for the purpose of making the
calculations required by TIA Section 313, Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities that the Trustee knows
to be so owned shall be so disregarded. Securities so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such
other obligor.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (and
premium, if any) or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability corporation or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for a mutilated security or in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price specified in the Security at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" shall mean any Security which is
registered in the Security Register.
"Regular Record Date" for the interest payable on any Security
on any Interest Payment Date means the date specified in such Security as the
Regular Record Date.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the
chairman or any vice- chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee duly authorized and 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
duly authorized officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933.
" 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, of any series authenticated and delivered from time to time under
this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, unless
otherwise specified in a supplemental indenture, (i) any corporation more than
50% of the outstanding shares of Voting Stock of which is owned, directly or
indirectly, by such Person, or by one or more other Subsidiaries of such
Person, or by such Person and one or more other Subsidiaries of such Person,
(ii) any general partnership, joint venture or similar entity, more than 50%
of the outstanding partnership or similar interests of which are owned,
directly or indirectly, by such Person, or by one or more other Subsidiaries
of such Person, or by such Person and one or more other Subsidiaries of such
Person and (iii) any limited partnership of which such Person or any
Subsidiary of such Person is a general partner.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended by the Trust Indenture Reform Act of 1990, as in force at the
date as of which this instrument was executed except as provided in Section
905.
"Trustee" means the Person named as the Trustee in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean and include each Person who is then a Trustee hereunder.
If at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the Trustee with respect to Securities of that series.
"U.S. Government Obligations" means, unless otherwise specified
in a supplemental indenture, (x) securities that are (i) direct obligations of
the United States of America for the payment of which the full faith and
credit of the United States of America is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which securities, in either case under clause (i) or (ii) above, are
not callable or redeemable at the option of the issuer thereof, and (y)
depository receipts issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
that is specified in clause (x) above and held by such bank for the account of
the holder of such depository receipt, or with respect to any specific payment
of principal or interest on any U.S. Government Obligation that is so
specified and held, 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 U.S. Government Obligation or the specific payment of principal
or interest of the U.S. Government Obligation evidenced by such depository
receipt.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means, with respect to any Person, securities of
any class or classes of capital stock in such Person entitling the holders
thereof (whether at all times or at the times that such class of capital stock
has voting power by reason of the happening of any contingency) to vote in the
election of members of the board of directors or comparable body of such
Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1004) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such certificate
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon (x) a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows
that the certificate or opinion or representations with respect to such
matters are erroneous or (y) one or more certificates of public officials.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders or Holders of any series may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders
in person or by agents duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. If any Securities are denominated in coin
or currency other than that of the United States, then for the purposes of
determining whether the Holders of the requisite principal amount of
Securities have taken any action as herein described, the principal amount of
such Securities shall be deemed to be that amount of United States dollars
that could be obtained for such principal amount on the basis of the spot rate
of exchange into United States dollars for the currency in which
such Securities are denominated (as evidenced to the Trustee by an Officers'
Certificate) as of the date the taking of such action by the Holders of such
requisite principal amount is evidenced to the Trustee as provided in the
immediately preceding sentence. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor
of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held
by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) If the Company shall solicit from the Holders of Securities
any request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such
solicitation is completed. 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 record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Securities Outstanding have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and
for that purpose the Securities Outstanding shall be computed as of such
record date; provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this Indenture,
or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice of any
event to Holders by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein or in such Security expressly
provided) if in writing and mailed, first- class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice mailed to
a Holder in the manner herein prescribed shall be conclusively deemed to have
been received by such Holder, whether or not such Holder actually receives
such notice. Where this Indenture or any Security provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be
impracticable to mail notice of any event to Holders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice for every purpose hereunder.
SECTION 107. Effect of Headings, Table of Contents and
Recitals.
The Article and Section headings herein, the Table of Contents
and the Recitals are for convenience only and shall not affect the
construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
and the Trustee shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in any Securities, express or
implied, shall give to any Person (other than the parties hereto, any Paying
Agent, any Security Registrar and their successors hereunder, and the Holders)
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. Governing Law.
This Indenture shall be governed by and construed in accordance
with the law of the State of New York (without giving effect to the conflict
of laws principles thereof). The Trustee, the Company, and (upon their
acceptance of Securities) the Holders, agree to submit to the non-exclusive
jurisdiction of any United States Federal or State court located in the
Borough of Manhattan, in the City of New York in any action or proceeding
arising out of or relating to this Indenture or the Securities. This Indenture
is subject to the provisions of the Trust Indenture Act that are required to
be part of this Indenture and shall, to the extent applicable, be governed by
such provisions.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, date established
for the payment of Defaulted Interest, Redemption Date or Stated Maturity or
Maturity of any Securities shall not be a Business Day, then (notwithstanding
any other provision of this Indenture or of the Securities) payment of
principal (or premium, if any) or interest need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date, date established for the payment of
Defaulted Interest, Redemption Date, or at the Stated Maturity or Maturity;
provided that no interest shall accrue for the period from and after such
Interest Payment Date, date established for the payment of defaulted interest,
Redemption Date, Stated Maturity or Maturity, as the case may be.
SECTION 113. No Recourse Against Others.
No recourse for the payment of the principal of, or premium, if
any, or interest on, any Security or for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any Security, or because of
the creation of any Debt represented thereby, shall be had against any
incorporator, stockholder, officer, director, employee, controlling person of
the Company or of a Subsidiary of the Company or of any successor Person of
the Company or of a Subsidiary of the Company. Each Holder by
accepting any Security waives and releases all such liability, and such waiver
and release is part of the consideration for the issuance of such Security.
SECTION 114. Exhibits and Schedules.
All exhibits and schedules attached hereto are by this
reference made a part hereof with the same effect as if herein set forth in
full.
SECTION 115. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
SECTION 116. Judgment Currency. The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of, or premium or interest, if any, on
the Securities of any series (the "Required Currency") into a currency in
which a judgment will be rendered (the "Judgment Currency"), the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in the City of New York the Required
Currency with the Judgment Currency on the New York Banking Day (as defined
below) preceding that on which final unappealable judgment is given and (b)
its obligations under this Indenture to make payments in the Required Currency
(i) shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in respect
of such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full
amount of the Required Currency so expressed to be payable and (iii) shall not
be affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing, "New York Banking Day" means any day
except a Saturday, Sunday or a legal holiday in the City of New York or a day
on which banking institutions in the City of New York are authorized or
required by law or executive order to close.
SECTION 117. Duplicate Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 118. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in, and made a part of, this Indenture.
Any terms incorporated by reference in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA, have the meanings so assigned to them therein.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon, as may be
required to comply with applicable laws or regulations or with the rules of
any securities exchange, or as may, consistently herewith, be determined by
the officers executing such Securities, as evidenced by their execution of the
Securities. Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Security.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities, subject, with respect to the Securities of any series, to the
rules of any securities exchange on which such Securities are listed.
SECTION 202. Forms of Securities.
Each Security shall be in one of the forms approved from time
to time by or pursuant to a Board Resolution, or established in one or more
indentures supplemental hereto. Prior to the delivery of a Security to the
Trustee for authentication in any form approved by or pursuant to a Board
Resolution, the Company shall deliver to the Trustee the Board Resolution by
or pursuant to which such form of Security has been approved, which Board
Resolution shall have attached thereto a true and correct copy of the form of
Security which has been approved thereby or, if a Board Resolution authorizes
a specific officer or officers to approve a form of Security, a certificate of
such officer or officers approving the form of Security attached thereto. Any
form of Security approved by or pursuant to a Board Resolution must be
acceptable as to form to the Trustee, such acceptance to be evidenced by the
Trustee's authentication of Securities in that form or a certificate signed by
a Responsible Officer of the Trustee and delivered to the Company.
SECTION 203. Form of Trustee's Certificate of Authentication.
The form of Trustee's Certificate of Authentication for any
Security issued pursuant to this Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee,
Dated: By:
Authorized Signatory
SECTION 204. Securities Issuable in the Form of a Global
Security.
(a) If the Company shall establish pursuant to Sections 202 and
301 that the Securities of a particular series are to be issued in
whole or in part in the form of one or more Global Securities, then
the Company shall execute and the Trustee or its agent shall, in
accordance with Section 303 and the Company Request delivered to the
Trustee or its agent thereunder, authenticate and deliver, such
Global Security or Securities, which (i) shall represent, and shall
be denominated in an amount equal to the aggregate principal amount
of, the Outstanding Securities of such series to be represented by
such Global Security or Securities, or such portion thereof as the
Company shall specify in a Company Request, (ii) shall be registered
in the name of the Depositary for such Global Security or Securities
or its nominee, (iii) shall be delivered by the Trustee or its agent
to the Depositary or pursuant to the Depositary's instruction and
(iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for the
individual Securities represented hereby, this Global Security may
not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary
or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
(b) Notwithstanding any other provisions of this Section 204 or
of Section 305, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Security expressly permit such
Global Security to be exchanged in whole or in part for individual
Securities, a Global Security may be transferred, in whole but not
in part and in the manner provided in Section 305, only to a nominee
of the Depositary for such Global Security, or to the Depositary, or
a successor Depositary for such Global Security selected or approved
by the Company, or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security
notifies the Company that it is unwilling or unable to continue as
Depositary for such Global
Security or if at any time the Depositary for the Securities for
such series ceases to be a clearing agency registered under the
Exchange Act or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to such Global
Security. If a successor Depositary for such Global Security is not
appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee or its agent, upon receipt of a Company
Request for the authentication and delivery of individual Securities
of such series in exchange for such Global Security, will
authenticate and deliver, individual Securities of such series of
like tenor and terms in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such Global
Security.
(ii) The Company may at any time and in its sole discretion
determine that the Securities of any series or portion thereof
issued or issuable in the form of one or more Global Securities
shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee,
upon receipt of a Company Request for the authentication and
delivery of individual Securities of such series in exchange in
whole or in part for such Global Security, will authenticate and
deliver individual Securities of such series of like tenor and terms
in definitive form in an aggregate principal amount equal to the
principal amount of such Global Security or Securities representing
such series or portion thereof in exchange for such Global Security
or Securities.
(iii) If specified by the Company pursuant to Sections 202 and
301 with respect to Securities issued or issuable in the form of a
Global Security, the Depositary for such Global Security may
surrender such Global Security in exchange in whole or in part for
individual Securities of such series of like tenor and terms in
definitive form on such terms as are acceptable to the Company and
such Depositary. Thereupon the Company shall execute, and the
Trustee or its agent shall authenticate and deliver, without service
charge, (1) to each Person specified by such Depositary a new
Security or Securities of the same series of like tenor and terms
and of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and (2) to such
Depositary a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to the Holders
thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee or its agent
will authenticate and deliver individual Securities in definitive
registered form in authorized denominations. Upon the exchange of
the entire principal amount of a Global Security for individual
Securities, such Global Security shall be canceled by the Trustee or
its agent. Except as provided in the preceding paragraph, Securities
issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant
to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or the Security Registrar. The
Trustee or the Security Registrar shall deliver such Securities to
the Persons in whose names such Securities are so registered.
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities that may be
authenticated and delivered and Outstanding under this Indenture is not
limited.
The Securities may be issued in one or more series up to an
aggregate principal amount of Securities as from time to time may be
authorized by the Board of Directors. All Securities of each series under this
Indenture shall in all respects be equally and ratably entitled to the
benefits hereof with respect to such series without preference, priority or
distinction on account of the actual time of the authentication and delivery
or Stated Maturity of the Securities of such series.
Each series of Securities shall be created either by or
pursuant to a Board Resolution or by or pursuant to an indenture supplemental
hereto. The Securities of each such series may bear such date or dates, be
payable at such place or places, have such Stated Maturity or Maturities, be
issuable at such premium over or discount from their face value, bear interest
at such rate or rates (which may be fixed or floating), from such date or
dates, payable in such installments and on such dates and at such place or
places to the Holders of Securities registered as such on such Regular Record
Dates, or may bear no interest, and may be redeemable or repayable at such
Redemption Price or Prices, whether at the option of the Holder or otherwise,
and upon such terms, all as shall be provided for in or pursuant to the Board
Resolution or in or pursuant to the supplemental indenture creating that
series. There may also be established in or pursuant to a Board Resolution or
in or pursuant to a supplemental indenture prior to the issuance of Securities
of each such series, provision for:
(1) the exchange or conversion of the Securities of that
series, at the option of the Company or the Holders thereof, for or
into new Securities of a different series or other securities or
other property of the Company or another Person, including shares of
capital stock of the Company or any subsidiary of the Company or of
any other Person or securities directly or indirectly convertible
into or exchangeable for any such shares;
(2) a sinking or purchase fund or other mandatory redemption or
other analogous obligation;
(3) if other than U.S. dollars, the currency or currencies or
units based on or related to currencies in which the Securities of
such series shall be denominated and in which payments of principal
of, and any premium, interest and Additional Amounts on, such
Securities shall or may be payable;
(4) if the principal of (and premium, if any) or interest, if
any, on the Securities of such series are to be payable, at the
election of the Company or a holder thereof, in a currency or
currencies or units based on or related to currencies other than
that in which the Securities are stated to be payable, the
period or periods within which, and the terms and conditions upon
which, such election may be made;
(5) if the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of such series may be
determined with reference to an index based on (i) a currency or
currencies or units based on or related to currencies other than
that in which the Securities are stated to be payable, (ii) changes
in the price of one or more other securities or groups or indexes of
securities or (iii) changes in the prices of one or more commodities
or groups or indexes of commodities, or any combination of the
foregoing, the manner in which such amounts shall be determined;
(6) if the aggregate principal amount of the Securities of that
series is to be limited, such limitations, and the maturity date of
the principal amount of the Securities of that series (which may be
fixed or extendible), and the rate or rates (which may be fixed or
floating) per annum at which the Securities of that series will bear
interest, if any, or the method of determining such rate or rates,
and the payment dates and record dates relating to such interest
payments;
(7) the exchange of Securities of that series, at the option of
the Holders thereof, for other Securities of the same series of the
same aggregate principal amount of a different authorized kind or
different authorized denomination or denominations, or both;
(8) the appointment by the Trustee of an Authenticating Agent
in one or more places other than the location of the office of the
Trustee with power to act on behalf of the Trustee and subject to
its direction in the authentication and delivery of the Securities
of any one or more series in connection with such transactions as
shall be specified in the provisions of this Indenture or in or
pursuant to the Board Resolution or the supplemental indenture
creating such series;
(9) the percentage of their principal amount at which such
Securities will be issued, and the portion of the principal amount
of Securities of the series, if other than the total principal
amount thereof, which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502 or
provable in bankruptcy pursuant to Section 504;
(10) any Event of Default with respect to the Securities of
such series, if not set forth herein and any additions, deletions or
other changes to the Events of Default set forth herein or to any
provision of Article Five that shall be applicable to the Securities
of such series (including a provision making any Event of Default
set forth herein inapplicable to the Securities of that series);
(11) any covenant solely for the benefit of the Securities of
such series and any additions, deletions or other changes to the
provisions of Article Ten or any definitions relating to such
Article that shall be applicable to the Securities of such series
(including a provision making any Section of such Article
inapplicable to the Securities of such series);
(12) changes as to definitions contained herein, whether or not
contemplated by such definition;
(13) if the Securities of the series shall be issued in whole
or in part in the form of a Global Security or Global Securities,
the terms and conditions, if any, upon which such Global Security or
Global Securities may be exchanged in whole or in part for other
individual Securities; and the Depositary for such Global Security
or Global Securities (if other than the Depositary specified in
Section 101 hereof);
(14) the subordination of the Securities of such series to any
other indebtedness of the Company, including without limitation, the
Securities of any other series;
(15) the applicability, if any, of Sections 1202 or 1203 to the
Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Twelve;
(16) the issuance of Securities, even though such Securities
are not registered under the Securities Act, with or without
provisions for the exchange for securities so registered or other
similar or related provisions;
(17) securing the Securities;
(18) adding guarantors to the Securities and the terms relating
thereto including with respect to any subordination thereof;
(19) modifying the provisions of Articles Eight and Nine;
(20) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons)
or both, any restrictions applicable to the offer, sale or delivery
of Bearer Securities and the terms upon which Bearer Securities of
the series may be exchanged for Registered Securities of the series
and vice versa (if permitted by applicable laws and regulations);
(21) adding to or modifying the terms governing redemption of
the Securities; and
(22) any other terms of the series, which shall not be
inconsistent with the provisions of this Indenture, all upon such
terms as may be determined in or pursuant to a Board Resolution or
in or pursuant to a supplemental indenture with respect to such
series.
All Securities of the same series shall be substantially
identical in tenor and effect, except as to denomination.
The form of the Securities of each series shall be established
pursuant to the provisions of this Indenture in or pursuant to the Board
Resolution or in or pursuant to the supplemental indenture creating such
series. The Securities of each series shall be distinguished from the
Securities of each other series in such manner, reasonably satisfactory to the
Trustee, as the Board of Directors may determine.
Unless otherwise provided with respect to Securities of a
particular series, the Securities of any series may only be issuable in
registered form, without coupons.
Any terms or provisions in respect of the Securities of any
series issued under this Indenture may be determined pursuant to this Section
by providing in a Board Resolution or supplemental indenture for the method by
which such terms or provisions shall be determined.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations and currency as shall be provided in the provisions of this
Indenture or in or pursuant to the Board Resolution or the supplemental
indenture creating such series. In the absence of any such provisions with
respect to the Securities of any series, the Securities of that series shall
be issuable only in fully registered form in denominations of $1,000 and any
integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman, its President or a Vice President and attested by its Secretary
or an Assistant Secretary. The signature of any of these officers on the
Securities may be manual or facsimile of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall; and the Trustee shall, upon Company
Order, authenticate and make available for delivery such Securities as in this
Indenture provided and not otherwise.
Prior to any such authentication and delivery, the Trustee
shall be entitled to receive, in addition to any Officers' Certificate and
Opinion of Counsel required to be furnished to the Trustee pursuant to Section
102, and the Board Resolution and any certificate relating to the issuance of
the series of Securities required to be furnished pursuant to Section 202, an
Opinion of Counsel to the effect that:
(1) all instruments furnished to the Trustee conform to the
requirements of the Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such
Securities;
(2) the form and terms (or in connection with the issuance of
medium- term Securities under Section 311, the manner of determining
the terms) of such
Securities have been established in conformity with the provisions
of this Indenture;
(3) all laws and requirements with respect to the execution and
delivery by the Company of such Securities have been complied with,
the Company has the corporate power to issue such Securities and
such Securities have been duly authorized and delivered by the
Company and, assuming due authentication and delivery by the
Trustee, constitute legal, valid and binding obligations of the
Company enforceable in accordance with their terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws and
legal principles affecting creditors' rights generally from time to
time in effect and to general equitable principles, whether applied
in an action at law or in equity) and entitled to the benefits of
this Indenture, equally and ratably with all other Securities, if
any, of such series Outstanding; and
(4) such other matters as the Trustee may reasonably request;
and, if the authentication and delivery relates to a new series of
Securities created by an indenture supplemental hereto, also stating
that all laws and requirements with respect to the form and
execution by the Company of the supplemental indenture with respect
to that series of Securities have been complied with, the Company
has corporate power to execute and deliver any such supplemental
indenture and has taken all necessary corporate action for those
purposes and any such supplemental indenture has been executed and
delivered and constitutes the legal, valid and binding obligation of
the Company enforceable in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws and
legal principles affecting creditors' rights generally from time to
time in effect and to general equitable principles, whether applied
in an action at law or in equity).
The Trustee shall not be required to authenticate such
Securities if the issue thereof will adversely affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture.
Unless otherwise provided in the form of Security for any
series, all Securities shall be dated the date of their authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and, upon receipt of the documents required by
Section 303, together with a Company Order, the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company designated for such purpose
pursuant to Section 1002, without charge to the Holder. Upon surrender for
cancelation of any one or more temporary Securities the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of such series of authorized
denominations and of like tenor and terms. Until so exchanged, the temporary
Securities of such series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
SECTION 305. Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and
in any other office or agency designated pursuant to Section 1002 (being
herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Securities, or of Securities of a particular series, and
for transfers of Securities or of Securities of such series. Any such register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. At all reasonable times the information
contained in such register or registers shall be available for inspection by
the Trustee. The Trustee is hereby initially appointed as security registrar
(the "Security Registrar") for the purpose of registering Securities and
transfers of Securities as herein provided. The Company may at any time and
from time to time authorize any Person to act as Security Register in place of
the Trustee with respect to any series of Securities issued under this
Indenture.
Subject to Section 204, upon surrender for transfer of any
Security of any series, upon surrender for registration of transfer of any
Security at the office or agency of the Company designated pursuant to Section
1002, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of such series of any authorized denomination or denominations
of a like aggregate principal amount and Stated Maturity and of like tenor and
terms.
Subject to Section 204, at the option of the Holder, Securities
of any series may be exchanged for other Securities of such series of any
authorized denominations and of a like aggregate principal amount and Stated
Maturity and of like tenor and terms, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate
and deliver, the Securities that the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in the form attached to the Security or otherwise satisfactory to the
Company and the Security Registrar, duly executed, by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise provided in the Security to be transferred or
exchanged, no service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may (unless otherwise
provided in such Security) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security of any series during a period beginning
at the opening of business 15 days before the day of the mailing of a notice
of redemption of Securities of such series selected for redemption under
Section 1103 and ending at the close of business on the day of such mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
None of the Company, the Trustee, any agent of the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee, or
(ii) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute and upon Company Order the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or in
lieu of any such destroyed, lost or stolen Security, a replacement Security of
like tenor, series, Stated Maturity and principal amount, bearing a number not
contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Security under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities of the same series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided with respect to such Security
pursuant to Section 301, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company maintained for such
purpose pursuant to Section 1002; provided, however, that each installment of
interest may at the Company's option be paid by (i) mailing a check for such
interest, payable to or upon the written order of the Person entitled thereto
pursuant to Section 308, to the address of such Person as it appears in the
Security Register or (ii) transfer to an account located in the United States
maintained by the payee.
Any interest on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the Regular Record Date by
virtue of having been such Holder, and such defaulted interest and (to the
extent lawful) interest on such defaulted interest at the rate borne by the
Securities (such defaulted interest and interest thereon herein collectively
called "Defaulted Interest") may be paid by the Company, at its election in
each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names any such Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of
the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements reasonably satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause (1) provided.
Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given
in the manner provided for in Section 106, not less than 10 days
prior to such Special Record Date notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so given, such Defaulted Interest shall be paid to the Persons
in whose names such Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and
upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
If any installment of interest the Stated Maturity of which is
on or prior to the Redemption Date for any Security called for redemption
pursuant to Article Eleven is not paid or duly provided for on or prior to the
Redemption Date in accordance with the foregoing provisions of this Section,
such interest shall be payable as part of the Redemption Price of such
Securities.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to and at the time of the due presentment of a Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name any Security is
registered in the Security Register as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any), and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancelation.
All Securities surrendered for payment, redemption,
registration of transfer, conversion or exchange or credit against a sinking
fund shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly canceled by it. The Company may at any
time deliver to the Trustee for cancelation any Securities previously
authenticated and delivered hereunder that the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustees) for cancelation any Securities previously
authenticated hereunder that the Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Trustee. No Security
shall be authenticated in lieu of or in exchange for any Securities canceled
as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures and certification of their disposal delivered to the Company unless
by Company Order the Company shall direct that canceled Securities be returned
to it. The Trustee shall provide the Company with a list of all Securities
that have been canceled from time to time as requested by the Company.
SECTION 310. Computation of Interest.
Unless otherwise provided as contemplated in Section 301,
interest on the Securities shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 311. Medium-term Securities.
Notwithstanding any contrary provision herein, if all
Securities of a series are not to be originally issued at one time, it shall
not be necessary for the Company to deliver to the Trustee an Officers'
Certificate, Board Resolution, supplemental indenture, Opinion of Counsel or
Company Request otherwise required pursuant to Sections 202, 301 and 303 at or
prior to the time of authentication of each Security of such series if such
documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first Security of such series to
be issued; provided that any subsequent request by the Company to the Trustee
to authenticate Securities of such series upon original issuance shall
constitute a representation and warranty by the Company that as of the date of
such request, the statements made in the Officers' Certificate delivered
pursuant to Section 102 shall be true and correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board
Resolution delivered by the Company to the Trustee in the circumstances set
forth in the preceding paragraph may provide that Securities which are the
subject thereof will be authenticated and delivered by the Trustee or its
agent on original issue from time to time upon the telephonic or written order
of persons designated in such Officers' Certificate, Board Resolution or
supplemental indenture (any such telephonic instructions to be confirmed
promptly in writing by such persons) and that such persons are authorized to
determine, consistent with such Officers' Certificate, supplemental indenture
or Board Resolution, such terms and conditions of said Securities as are
specified in such Officers' Certificate, supplemental indenture or Board
Resolution.
SECTION 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
SECTION 313. Global Securities.
(a) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated by the
Company for such Global Security or a nominee thereof and delivered
to such Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all
purposes of this Indenture.
(b) Notwithstanding any other provision of this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (i)
such Depositary (A) has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Security or (B) has
ceased to be a clearing agency registered as such under the Exchange
Act or announces an intention permanently to cease business or does
in fact do so or (ii) there shall have occurred and be continuing an
Event of Default with respect to such Global Security.
(c) If any Global Security is to be exchanged for other
Securities or canceled in whole, it shall be surrendered by or on
behalf of the Depositary or its nominee to the Trustee, as Security
Registrar, for exchange or cancelation, as provided in this Article
Three. If any Global Security is to be exchanged for other
Securities or canceled in part, or if another Security is to be
exchanged in whole or in part for a beneficial interest in any
Global Security, in each case, as provided in Section 305, then
either (i) such Global Security shall be so surrendered for exchange
or cancelation, as provided in this Article Three or (ii) the
principal amount thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or canceled, or
equal to the principal amount of such other Security to be so
exchanged for a beneficial interest therein, as the case may be, by
means of an appropriate adjustment made on the records of the
Trustee, as Security Registrar, whereupon the Trustee, in accordance
with the applicable procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global Security,
the Trustee shall, subject to Section 305 and as otherwise provided
in this Article Three, authenticate and deliver any Securities
issuable in exchange for such Global Security (or any portion
thereof) to or upon the order of, and registered in such names as
may be directed by, the Depositary or its authorized representative.
Upon the request of the Trustee in connection with the occurrence of
any of the events specified in the preceding paragraph, the Company
shall promptly make available to the Trustee a reasonable supply of
Securities that are not in the form of Global Securities. The
Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is
given or made pursuant to this Article Three if such order,
direction or request is given or made in accordance with the
applicable procedures.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this
Article Three or otherwise, shall be authenticated and delivered in
the form of, and shall be, a registered Global
Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee
thereof, in which case such Registered Security shall be
authenticated and delivered in definitive, fully registered form,
without interest coupons.
(e) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all
purposes under the Indenture and the Registered Securities, and
owners of beneficial interests in a Global Security shall hold such
interests pursuant to the applicable procedures. Accordingly, any
such owner's beneficial interest in a Global Security will be shown
only on, and the transfer of such interest shall be effected only
through, records maintained by the Depositary or its nominee or its
agent members and such owners of beneficial interests in a Global
Security will not be considered the owners or holders thereof.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to surviving rights of registration of transfer or
exchange of Securities expressly provided for herein or pursuant hereto) and
the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
when
(1) either
(a) all Securities theretofore authenticated and delivered
(other than (i) Securities that have been destroyed, lost or
stolen and that have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust with the Trustee or any
Paying Agent or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee
for cancelation; or
(b) all such Securities not theretofore delivered to the
Trustee for cancelation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii)are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose
United States dollars (or another currency if applicable)
in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered
to the Trustee for cancelation, for principal (and
premium, if any) and interest to the date of such deposit
(in the case of Securities that have become due and
payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with. (Such Opinion of Counsel may, as to all matters of fact, rely
on, among other things, such Officers' Certificate.)
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607
and, if money shall have been deposited with the Trustee pursuant to subclause
(b) of clause (1) of this Section, the obligations of the Trustee under
Section 402 and the second to the last paragraph of Section 1003 shall
survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the second to the last paragraph
of Section 1003, all money deposited with the Trustee pursuant to Section 401
shall be held in trust and applied by it, in accordance with the provisions of
the Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee; but such money need not be segregated from other funds
except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means with respect to
any series of Securities 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 either
inapplicable to a particular series or it is specifically deleted or modified
in the supplemental indenture creating such series of Securities or in the
form of Security for such series:
(a) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days;
(b) default in the payment of the principal of (or premium, if
any, on) any Security at its Stated Maturity, upon repurchase,
acceleration, optional redemption, required repurchase or otherwise,
or the failure to make an offer to purchase as therein required;
(c) default in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the
Securities of such series; or
(d) failure by the Company to perform or comply with the
provisions of Article Eight of this Indenture;
(e) default in the performance, or breach, of any covenant or
warranty of the Company under this Indenture in respect of the
Securities of such series other than a covenant or warranty in
respect of the Securities of such series, a default in whose
performance or whose breach is specifically dealt with in (a), (b),
(c) or (d) above) and continuance of such default or breach, for a
period of 90 days after specified written notice thereof has been
given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% of the aggregate principal
amount of the Outstanding Securities of such series;
(f) the entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under U.S. bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal, State, or
foreign bankruptcy, insolvency, or other similar law or (ii) a
decree or order adjudging the Company bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company under U.S. bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal, State, or foreign bankruptcy,
insolvency, or similar law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of the property
or assets of the Company or ordering the winding up or liquidation
of the affairs of the Company and the continuance of any such decree
or order for relief or any such other decree or order unstayed and
in effect for a period of 90 consecutive days;
(g) (i) the commencement by the Company of a voluntary case or
proceeding under U.S. bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal, State, or foreign
bankruptcy, insolvency or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or (ii) the
consent by the Company to the entry of a decree or order for relief
in respect of the Company in an involuntary case or proceeding under
U.S. bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal,
State or foreign bankruptcy, insolvency, or other similar law or to
the commencement of any bankruptcy or insolvency case or proceeding
against the Company, or (iii) the filing by the Company of a
petition or answer or consent seeking reorganization or relief under
U.S. bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal, State, or foreign bankruptcy, insolvency or
other similar law, or (iv) the consent by the Company to the filing
of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or of any substantial part of the
property or assets of the Company, or the making by the Company of
an assignment for the benefit of creditors, or (v) the admission by
the Company in writing of its inability to pay its debts generally
as they become due, or (vi) the taking of corporate action by the
Company in furtherance of any such action; or
(h) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the
form of Security for such series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(f) or 501(g)) occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities may declare the principal amount of all
the Outstanding Securities and any accrued and unpaid interest on all such
Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount and any accrued and unpaid interest on all
such Securities shall become immediately due and payable. If an Event of
Default specified in Section 501(f) or 501(g) occurs and is continuing, then
the principal amount of all the Securities 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.
At any time after such a declaration of acceleration has been
made with respect to the Securities of any series and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter provided in this Article, the Holders of 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 has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on the Securities of such series,
(B) all unpaid principal of (and premium, if any, on) any
Securities of such series that have become due otherwise than
by such declaration of acceleration, and interest thereon at
the rate or rates prescribed therefor by the terms of the
Securities of such series, to the extent that payment of such
interest is lawful,
(C) interest on overdue interest at the rate or rates
prescribed therefor by the terms of the Securities of such
series to the extent that payment of such interest is lawful,
and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to such series of
Securities, other than the nonpayment of the principal of the
Securities of such series that have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Debt and Suits for Enforcement by
Trustee.
The Company covenants that if an Event of Default specified in
Section 501(a), (b) or (c) occurs, the Company will, upon demand of the
Trustee, pay to the Trustee for the benefit of the Holders of such Securities
(or the Holders of any series in the case of 501(c)), the whole amount then
due and payable on such Securities (or on the Securities of any such series in
the case of 501(c)) for principal (and premium, if any) and interest, and
interest on any overdue principal (and premium, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon any overdue
installment of interest, at the such rate or rates prescribed therefor by the
terms of any such Security (or of Securities of any such series in the case of
501(c)) by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
the Securities, wherever situated.
If an Event of Default with respect to any series of Securities
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other similar judicial proceeding relative to the Company or any other
obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal, premium,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name and as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities of the series in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee with respect to a series of
Securities 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 premium, if any) or interest, upon
presentation of the Securities of such series and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities of that series for principal of (and premium, if any)
and interest, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Securities of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to Securities
of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(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 or more in principal amount of the Outstanding
Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Securities of such series, or to obtain or
to seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders of all
Securities of such series.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if
applicable, Article Twelve) and in such Security of the principal of (and
premium, if any) and (subject to Section 307) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of
the Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or any Security,
(2) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction, and
(3) the Trustee need not take any action that might involve it
in personal liability or be unjustly prejudicial to the Holders not
consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive (including by way of consents obtained
with a purchase of, or a tender or exchange offer for, Securities) any past
default hereunder and its consequences, except a default
(1) in respect of the payment of the principal of (or premium,
if any) or interest on any Security of such series, or in the
payment of any sinking or purchase fund or analogous obligation with
respect to the Securities of such series, or
(2) in respect of a covenant or provision hereof that under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series.
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 Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, that may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by such Holder's acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series to which the suit relates, or to any suit
instituted by any Holder for the enforcement of the payment of the principal
of, premium, if any, or interest on any Security on or after the respective
Stated Maturity expressed in such Security.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(1) Except during the continuance of an Event of Default with
respect to any series of Securities,
(a) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect
to the Securities of such series, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(b) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, rely conclusively, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions that by any provision
hereof specifically are required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture.
(2) If an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(3) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(a) this Subsection shall not be construed to limit the effect
of Subsection (1) of this Section;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the
Holders of a majority in principal amount of the Outstanding
Securities of any series 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 with respect to the Securities of such series; and
(d) the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder,
the Trustee shall transmit in the manner and to the extent provided in TIA
Section 313(c), notice of such Default hereunder known to the Trustee, unless
such Default shall have been cured or waived; provided, however, that, except
in the case of a Default in the payment of the principal of (or premium, if
any) or interest on any Security of such series or in the payment of any
sinking or purchase fund installment or analogous obligation with respect to
Securities 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 determines that the withholding of such notice is in the interest
of the Holders; and provided further that in the case of any Default of the
character specified in Section 501(e) with respect to Securities of such
series no such notice to Holders of such series shall be given until at least
60 days after the occurrence thereof.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness 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 mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(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 be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization
and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
that 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, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit; and
(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 (other than an agent or attorney who is an employee of the
Trustee) appointed with due care by it hereunder.
SECTION 604. Trustee Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the Securities, except for
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, 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 and Qualification on Form
T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any
other agent of the Company or of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar
or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder shall, until used
or applied as herein provided, be held in trust for the purposes for which it
was received, but need not be segregated from other funds except to the extent
required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may arise from or be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part or on the part of its directors, officers,
employees and agents, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself, and of indemnifying its directors,
officers, employees and agents, against any claim or liability in
connection with the exercise or performance of any of the Trustee's
powers or duties hereunder.
The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. The obligations
of the Company under this Section to compensate the Trustee, to pay or
reimburse the Trustee for expenses, disbursements and advances and to
indemnify and hold harmless the Trustee shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of
this Indenture. As security for the performance of such obligations of the
Company, the Trustee shall have a claim prior to the Securities 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, if any) or interest on
particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(f) or (g), the
expenses (including the reasonable charges and expenses of its counsel) of and
the compensation for such services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder
shall be subject to the provisions of Section 310(b) of the Trust Indenture
Act during the period of time provided for therein. In determining whether the
Trustee has a conflicting
interest as defined in Section 310(b) of the Trust Indenture Act with respect
to the Securities of any series, there shall be excluded for purposes of the
conflicting interest provisions of such Section 310(b) (i) the Securities of
every other series issued under this Indenture, (ii) every series of
securities issued under the Indenture dated as of , between Teligent,
Inc. and and (iii) every series of
securities issued under the Indenture dated as of , between Teligent,
Inc. and . Nothing herein shall prevent the Trustee from
filing with the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder with respect to
each series of Securities, that shall be eligible to act as Trustee under TIA
Section 310(a)(1) and 310(a)(5) and shall have a combined capital and surplus
of at least $50,000,000. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of Federal, State,
territorial or District of Columbia supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee with respect to any series of Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign with respect to any series of
Securities at any time by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of not less than a majority in
principal amount of the Outstanding Securities of that series, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) with respect to any series of Securities after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security of that series for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 609
with respect to any series of Securities and shall fail to resign
after written request
therefor by the Company or by any such Holder who has been a bona
fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting with respect
to any series of Securities or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, with respect to the series, or in the case of clause (4), with
respect to all series or (ii) subject to TIA Section 315(e), any Holder who
has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to the series, or, in the case
of clause (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become incapable
of acting with respect to any series of Securities, or if a vacancy shall
occur in the office of Trustee with respect to any series of Securities for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee for that series of Securities. If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy,
a successor Trustee with respect to such series of Securities shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
such series and supersede the successor Trustee appointed by the Company. If
no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security of that 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.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to the
Holders of Securities in the manner provided for in Section 106. Each notice
shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective with respect to any
series as to which it is resigning or being removed as Trustee and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon reasonable request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the predecessor Trustee and each successor Trustee with respect to
the Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Securities of any series
as to which the predecessor Trustee is not being succeeded shall continue to
be vested in the predecessor Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and
that each such Trustee shall be Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee.
No successor Trustee with respect to any series of Securities
shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible with respect to that series
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation 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 trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion 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. In case at that time any of the
Securities shall not have been authenticated, any successor Trustee may
authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor Trustee. In all such cases such certificates
shall have the full force and effect that this Indenture provides for the
certificate of authentication of the Trustee; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee or
to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 613. Conflicting Interests.
The Trustee shall be subject to and comply with the provisions
of Section 310(b) of the TIA.
SECTION 614. Preferential Collection of Claims Against Issuers.
The Trustee shall comply with Section 311(a) of the TIA,
excluding any creditor relationship listed in Section 311(b) of the TIA. If
the present or any future Trustee shall resign or be removed, it shall be
subject to Section 311(a) of the TIA to the extent provided therein.
SECTION 615. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the
Trustee, with the approval of the Company, may appoint an Authenticating Agent
or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as an Authenticating Agent, having a combined capital
and surplus of not less than $50,000,000 and, if other than the Company
itself, subject to supervision or examination by Federal or State authority.
If such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and, if other than the Company, to the
Company. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and, if
other than the Company, to the Company Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee, with the approval of the Company, may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent (other
than an Authenticating Agent appointed at the request of the Company from time
to time) reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ],
by
-----------------------------------
As Authenticating Agent
Date: by
-----------------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the
Trustee or any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with TIA Section 312, 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 under TIA
Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after of each year commencing
with the first after the first issuance of Securities, the
Trustee shall transmit to the Holders, in
the manner and to the extent provided in TIA Section 313(c), a brief
report dated as of such if required by TIA Section 313(a).
SECTION 703. Reports by Company.
The Company shall:
(1) whether or not the Company is subject to Section 13(a) or 15(d) of
the Exchange Act or any successor provision thereto, file with the Commission
the annual reports, quarterly reports and other documents that the Company
would have been required to file with the Commission pursuant to such Section
13(a), 15(d) or any successor provision thereto if the Company were subject
thereto and shall file such documents with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been required to file them;
(2) whether or not the Company is subject to Section 13(a) or 15(d) of
the Exchange Act or any successor provision thereto, within 15 days of each
Required Filing Date, file with the Trustee copies of the annual reports,
quarterly reports and other documents (without exhibits) that the Company
would have been required to file with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act or any successor provisions thereto if the
Company was subject thereto:
(3) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(4) transmit by mail to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 15 days after the filing thereof with
the Commission, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1), (2) and (3) of
this Section as may be required by rules and regulations prescribed from time
to time by the Commission.
If the Company is not permitted under the Exchange Act to file
with the Commission such reports and other information referred to in Section
703(1), the Company shall promptly upon written request supply copies of such
documents (without exhibits) to prospective purchasers of the Securities or
their representatives.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any other
Person or sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of its property and assets to any Person, unless:
(a) either (i) the Company shall be the continuing corporation
or (ii) the corporation (if other than the Company) formed by such
consolidation or into which the Company is merged, or the Person
that acquires, by sale, assignment, conveyance, transfer, lease or
disposition, all or substantially all of the property and assets of
the Company and its Subsidiaries taken as a whole (such corporation
or Person, the "Surviving Entity"), shall be a corporation organized
and validly existing under the laws of the United States of America,
any political subdivision thereof or any State thereof or the
District of Columbia, and shall expressly assume, by a supplemental
indenture, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Securities and the
performance of the Company's covenants and obligations under this
Indenture;
(b) immediately before and after giving effect to such
transaction, no Default or Event of Default shall have occurred and
be continuing or would result therefrom; and
(c) the Company or such Person shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply with this
Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Notwithstanding the foregoing, the Company may merge with an
Affiliate incorporated or organized for the sole purpose of reincorporating or
reorganizing the Company in another jurisdiction to realize tax or other
benefits provided such merger meets the requirements of clauses (a), (b) and
(c) of the preceding paragraphs.
Upon any transaction or series of transactions that are of the
type described in, and are effected in accordance with, the foregoing
paragraphs, the Surviving Entity (if other than the Company) shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture and the Securities with the same effect as if such
Surviving Entity had been named as the Company herein; and when a Surviving
Person duly assumes all of the obligations and covenants of the Company
pursuant to this Indenture and the Securities, except in the case of a lease,
the predecessor Person shall be relieved of all such obligations.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with or merger of the
Company with or into any other corporation 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 801, the successor Person formed by
such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein, and in the event of any such conveyance or transfer, the
Company
(which term shall for this purpose mean the Person named as the "Company" in
the first paragraph of this Indenture or any successor Person that shall
theretofore become such in the manner described in Section 801), except in the
case of a lease, shall be discharged of all obligations and covenants under
this Indenture and the Securities and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders.
Without notice to or the consent of any Holders, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may amend, waive or supplement this Indenture and Securities and
the Control Agreement and (if necessary) enter into one or more indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company contained herein, and in the Securities, or
(2) to add to the covenants of the Company or to surrender any
right or power herein conferred upon the Company for the benefit of
the Holders of the Securities of any or all series (and if such
covenants or the surrender of such right or power are to be for the
benefit of less than all series of Securities, stating that such
covenants are expressly being included or such surrenders are
expressly being made solely for the benefit of one or more specified
series), or
(3) to add any additional Events of Default in respect of the
Securities of any or all series (and if such additional Events of
Default are to be in respect of less than all series of Securities,
stating that such Events of Default are expressly being included
solely for the benefit of one or more specified series), or
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of
Section 611, or
(5) to cure any ambiguity, to correct or supplement any
provision herein that may be inconsistent with any other provision
herein, or to add any other provisions with respect to matters or
questions arising under this Indenture; provided that such action
shall not adversely affect the interests of the Holders of
Securities of any series in any material respect, or
(6) to secure the Securities or to add guarantors to the
Securities, or
(7) to provide for uncertificated Securities in addition to or
in place of certificated Securities, or
(8) to change or eliminate any of the provisions herein;
provided that any such change or elimination shall become effective
only when there is not
Outstanding any Security created prior to the execution of such
amendment, waiver or supplemental indenture that is entitled to the
benefit of such provision, or
(9) to establish any form of Security, as provided in Article
Two, and to provide for the issuance of any series of Securities as
provided in Article Three and to set forth the terms thereof or to
add to the rights of the Holders of the Securities of any series; or
(10) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent (including consents obtained with a purchase
of, or a tender or exchange offer for, Securities) of the Holders of not less
than a majority in principal amount of the Outstanding Securities of each
series affected by such supplemental indenture or indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may amend, waive or supplement this
Indenture, and (if necessary) enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent (including consents obtained with a purchase of, or a tender or
exchange offer for, Securities) of the Holder of each Outstanding Security
affected thereby:
(1) change the Stated Maturity of the principal of or any
installment of interest on any Security, or reduce the principal
amount thereof (or premium, if any) or the rate of interest thereon
or change the coin or currency in which any Security or any premium
or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture, or
(3) subordinate in right of payment, or otherwise subordinate,
the Securities to any other Debt, or
(4) modify any provision of this Indenture relating to the
calculation of accreted value, or
(5) modify any of the provisions of this Section or Sections
513, 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.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not
to affect the rights under this Indenture of the Holders of Securities of any
other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not
(except to the extent required in the case of a supplemental indenture entered
into under Section 901(4) or 901(10)) be obligated to, enter into any such
supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the Article
shall conform to the requirements of the Trust Indenture Act as then in effect
if this Indenture shall then be required to be qualified under the TIA.
SECTION 906. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, replacement Securities 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.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and
Interest.
With respect to each series of Securities, the Company will
duly and punctually pay the principal of (and premium, if any) and interest on
such Securities in accordance with their terms and this Indenture, and will
duly comply with all the other terms, agreements and conditions contained in,
or made in the Indenture for the benefit of, the Securities of such series.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York, an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Trustee's New York Corporate Trust
Office at 00 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000
shall be such office or agency of the Company, unless the Company shall
designate and maintain some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind any such designation; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such
other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
for any series of Securities, it will, on or before each due date of the
principal of (or premium, if any) or interest on, any of the Securities of
such series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal of (or premium, if any)
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of such Securities, it will, on or before each due date of the
principal of (or premium, if any) or interest any Securities of such series,
deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of such action or
any failure so to act.
The Company will cause each Paying Agent (other than the
Company or the Trustee for any series of Securities) to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of 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
herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making
of any payment of principal (and premium, if any) or interest on the
Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any series of
Securities or for any other purpose, pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent in respect of each and every series of Securities as to
which it seeks to discharge this Indenture or, if for any other purpose, all
sums so held in trust by the Company in respect of all Securities, such sums
to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (or
premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal, premium or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
The Company initially authorizes the Trustee to act as Paying
Agent for the Securities on its behalf. The Company may at any time and from
time to time authorize one or more Persons to act as Paying Agent in addition
to or in place of the Trustee with respect to any series of Securities issued
under this Indenture.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Company, stating that
(1) a review of the activities of the Company during such year
and of the Company's performance under this Indenture and under the
terms of the Securities has been made under his supervision; and
(2) to the best of his knowledge, based on such review, the
Company has complied with all conditions and covenants under this
Indenture through such year, or, if there has been a Default in the
fulfillment of any such obligation, specifying each such Default
known to him and the nature and status thereof (other than with
respect to Debt in the principal amount of less than $15,000,000).
For purposes of this Section 1004, compliance shall be
determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
The Company may reserve the right to redeem and pay before
Stated Maturity all or any part of the Securities of any series, either by
optional redemption, sinking or purchase fund or analogous obligation or
otherwise, by provision therefor in the form of Security for such series
established and approved pursuant to Section 202 and on such terms as are
specified in such form or in the Board Resolution or indenture supplemental
hereto with respect to Securities of such series as provided in Section 301
Redemption of Securities of any series shall be made in accordance with the
terms of such Securities and, to the extent that this Article does not
conflict with such terms, the succeeding Sections of this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
securities or elsewhere in this Indenture, or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of like tenor and terms of any
series 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 in compliance with the
requirements of the principal national securities exchange, if any, on which
the Securities are listed or, if the Securities are not then listed on a
national securities exchange, on a pro rata basis or by lot or any other
method as the Trustee shall deem fair and appropriate and that may provide for
the selection for redemption of portions of the principal of Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series. Unless otherwise provided in the terms of a
particular series of Securities, the portions of the principal of Securities
so selected for partial redemption shall be equal to the minimum authorized
denomination of the Securities of such series, or an integral multiple
thereof, and the principal amount which remains outstanding shall not be less
than the minimum authorized denomination for Securities of such series. If
less than all the Securities of unlike tenor and terms of a series are to be
redeemed, the particular Securities to be redeemed shall be selected by the
Company.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security 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 redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security that has been or is to
be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided for
in Section 106 not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to
the Redemption Date payable as provided in Section 1106, if any,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification including CUSIP numbers (and, in
the case of a partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice that relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the holder
will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price (and
accrued interest, if any, to the Redemption Date payable as provided
in Section 1106) will become due and payable upon each such
Security, or the portion thereof, to be redeemed, and that interest
thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued
interest, if any, and
(7) that the redemption is on account of a sinking or purchase
fund, or other analogous obligation, if that be the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to 12:00 noon, New York City time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and accrued interest on, all the Securities that are to
be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (together with accrued
interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of
Section 307.
On and after any Redemption Date, if money sufficient to pay
the Redemption Price of any accrued and unpaid interest on Securities called
for redemption shall have been made available in accordance with Section 1105,
the Securities called for redemption will cease to accrue interest and the
only right of the Holders of such Securities will be to receive payment of the
Redemption Price of and, subject to the provision in the preceding paragraph,
any accrued and unpaid interest on such Securities to the Redemption Date.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security that is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 1002 (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 such Holders attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of 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.
SECTION 1108. Provisions with Respect to Any Sinking Funds.
Unless the form or terms of any series of Securities shall
provide otherwise, in lieu of making all or any part of any mandatory sinking
fund payment with respect to such series of Securities in cash, the Company
may at its option (1) deliver to the Trustee for cancelation any Securities of
such series theretofore acquired by the Company, or (2) receive credit for any
Securities of such series (not previously so credited) acquired by the Company
and theretofore delivered to the Trustee for cancelation or redeemed by the
Company other than through the mandatory sinking fund, and if it does so then
(i) Securities so delivered or credited shall be credited at the applicable
sinking fund Redemption Price with respect to Securities of such series, and
(ii) on or before the 60th day next preceding each sinking fund Redemption
Date with respect to such series of Securities, the Company will deliver to
the Trustee (A) an Officers' Certificate specifying the portions of such
sinking fund payment to be satisfied by payment of cash and by delivery or
credit of Securities of such series acquired by the Company or so redeemed,
and (B) such Securities so acquired, to the extent not previously surrendered.
Such Officers' Certificate shall also state the basis for such credit and that
the Securities for which the Company elects to receive credit have not been
previously so credited and were not redeemed by the Company through operation
of the mandatory sinking fund, if any, provided with respect to such
Securities and shall also state that no Event of Default with respect to
Securities of such series has occurred and is continuing All Securities so
delivered to the Trustee shall be canceled by the Trustee and no Securities
shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional)
with respect to any series of Securities made in cash plus any unused balance
of any preceding sinking fund payments with respect to Securities of such
series made in cash shall exceed $50,000 (or a lesser sum if the Company shall
so request), unless otherwise provided by the terms of such series of
Securities, that cash shall be applied by the Trustee on the sinking fund
Redemption Date with respect to Securities of such series next following the
date of such payment to the redemption of Securities of such series at the
applicable sinking fund Redemption Price with respect to Securities of such
series, together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 1106. The Trustee shall
select, in the manner provided in Section 1103, for redemption on such sinking
fund Redemption Date a sufficient principal amount of Securities of such
series to utilize that cash and shall thereupon cause notice of redemption of
the Securities of such series for the sinking fund to be given in the manner
provided in Section 1104 (and with the effect provided in Section 1106) for
the redemption of Securities in part at the option of the Company. Any sinking
fund moneys not so applied or allocated by the Trustee to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
with respect to Securities of such series received by the Trustee and,
together with such payment, shall be applied in accordance with the provisions
of this Section 1108. Any and all sinking fund moneys with respect to
Securities of any series held by the Trustee at the Maturity of Securities of
such series, and not held for the payment or redemption of particular
Securities of
such series, shall be applied by the Trustee, together with other moneys, if
necessary, to be deposited sufficient for the purpose, to the payment of the
principal of the Securities of such series at Maturity.
On or before each sinking fund Redemption Date provided with
respect to Securities of any series, the Company shall pay to the Trustee in
cash a sum equal to all accrued interest, if any, to the date fixed for
redemption on Securities to be redeemed on such sinking fund Redemption Date
pursuant to this Section 1108.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301,
provision is made for either or both of (a) defeasance of the Securities of or
within a series under Section 1202 or (b) covenant defeasance of the
Securities of or within a series under Section 1203, then the provisions of
such Section or Sections, as the case may be, together with the other
provisions of this Article (with such modifications thereto as may be
specified pursuant to Section 301 with respect to any Securities), shall be
applicable to such Securities, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities, elect to have
Section 1202 (if applicable) or Section 1203 (if applicable) be applied to
such Outstanding Securities upon compliance with the conditions set forth
below in this Article.
SECTION 1202. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities on
the date the conditions set forth in Section 1204 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
such Outstanding Securities and any coupons appertaining thereto, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section 1205
and the other Sections of this Indenture referred to in clauses (A) and (B) of
this Section, and to have satisfied all its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
such Outstanding Securities and any coupons appertaining thereto to receive,
solely from the trust fund described in Section 1204 and as more fully set
forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Company's obligations with respect
to such Securities under Sections 305, 306, 1002 and 1003, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article Twelve, the Company may
exercise its option under this Section notwithstanding the prior exercise of
its option under Section 1203 with respect to such Securities and any coupons
appertaining thereto.
SECTION 1203. Covenant Defeasance. Upon the Company's exercise
of the above option applicable to this Section with respect to any Securities
of or within a series, the Company shall be released from its obligations
under Section 1004, and, if specified pursuant to Section 301, its obligations
under any other covenant, with respect to such Outstanding Securities and any
coupons appertaining thereto on and after the date the conditions set forth in
Section 1204 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 Section 1004, or such other 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 may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section or such
other covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default under
Section 501(e) or 501(h) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1202 or
Section 1203 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Fourteen 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 such currency, currencies of
currency unit in which such Securities and any coupons appertaining
thereto are then specified as payable at Stated Maturity), or (2)
U.S. Government Obligations applicable to such Securities and
coupons appertaining thereto (determined on the basis of the
currency, currencies or currency unit 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,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (i)
the principal of (and premium, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on the
Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any coupons
appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such
Securities and any coupons appertaining thereto shall have occurred
and be continuing on the date of such deposit or, insofar as
Sections 501(f) and 501(g) are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(d) In the case of an election under Section 1202, the Company
shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from, or there has been published
by, the Internal Revenue Service a 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 covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same time as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under Section 1203, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the defeasance under Section 1202 or the
covenant defeasance under Section 1203 (as the case may be) have
been complied with and an Opinion of Counsel to the effect that
either (i) as a result of a deposit pursuant to subsection (a) above
and the related exercise of the Company's option under Section 1202
or Section 1203 (as the case may be), registration is not required
under the Investment Company Act of 1940, as deposit or by the
Trustee for such trust funds or (ii) all necessary registrations
under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance
with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant
to Section 301.
SECTION 1205. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions
of the penultimate paragraph of Section 1003, all money and U.S. Government
Obligations (or other property as may be provided pursuant to Section 301)
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 1205, the
"Trustee") pursuant to Section 1204 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) 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 need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1204 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the holders of such Outstanding Securities and
any coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations (or other property and any
proceeds therefrom) held by it as provided in Section 1204 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 Article.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and year first
above written.
TELIGENT, INC.
By _______________________
Title:
FIRST UNION NATIONAL BANK
By _________________________
Title:
TABLE OF CONTENTS
Page
PARTIES.....................................................................1
RECITALS OF THE COMPANY.....................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions..........................................1
Act................................................................2
Additional Amounts.................................................2
Affiliate..........................................................2
Authenticating Agent...............................................2
Board of Directors.................................................2
Board Resolution...................................................2
Business Day.......................................................2
Commission.........................................................2
Company............................................................2
Company Request or Company Order...................................3
Corporate Trust Office.............................................3
Debt...............................................................3
Default............................................................3
Defaulted Interest.................................................3
Depositary.........................................................3
Event of Default...................................................3
Exchange Act.......................................................3
Global Security....................................................3
Holder.............................................................3
Indenture or this Indenture........................................3
Interest...........................................................4
Interest Payment Date..............................................4
Maturity...........................................................4
Officers' Certificate..............................................4
Opinion of Counsel.................................................4
Original Issue Discount Security...................................4
Outstanding........................................................4
Paying Agent.......................................................5
Person.............................................................5
Predecessor Security...............................................5
Redemption Date....................................................5
Redemption Price...................................................5
Regular Record Date................................................5
Responsible Officer................................................5
Securities Act.....................................................6
Security or Securities.............................................6
Security Register and Security Registrar...........................6
Special Record Date................................................6
Stated Maturity....................................................6
Subsidiary.........................................................6
Trust Indenture Act or TIA.........................................6
Trustee............................................................6
U.S. Government Obligations........................................6
Vice President.....................................................7
Voting Stock.......................................................7
SECTION 102. Compliance Certificates and Opinions.................7
SECTION 103. Form of Documents Delivered to Trustee...............8
SECTION 104. Acts of Holders......................................8
SECTION 105. Notices, Etc., to Trustee and Company................9
SECTION 106. Notice to Holders; Waiver...........................10
SECTION 107. Effect of Headings, Table of Contents and Recitals..10
SECTION 108. Successors and Assigns..............................10
SECTION 109. Separability Clause.................................10
SECTION 110. Benefits of Indenture...............................11
SECTION 111. Governing Law.......................................11
SECTION 112. Legal Holidays......................................11
SECTION 113. No Recourse Against Others..........................11
SECTION 114. Exhibits and Schedules..............................11
SECTION 115. Counterparts........................................12
SECTION 116. Judgment Currency...................................12
SECTION 117. Duplicate Originals.................................12
SECTION 118. Incorporation by Reference of TIA...................12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.....................................13
SECTION 202. Forms of Securities.................................13
SECTION 203. Form of Trustee's Certificate of Authentication.....14
SECTION 204. Securities Issuable in the Form of a Global
Security..........................................14
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.....................................16
SECTION 302. Denominations.......................................19
SECTION 303. Execution, Authentication, Delivery and Dating......19
SECTION 304. Temporary Securities................................20
SECTION 305. Registration, Transfer and Exchange.................21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities....22
SECTION 307. Payment of Interest; Interest Rights Preserved......23
SECTION 308. Persons Deemed Owners...............................24
SECTION 309. Cancelation.........................................24
SECTION 310. Computation of Interest.............................25
SECTION 311. Medium-term Securities..............................25
SECTION 312. CUSIP Numbers.......................................25
SECTION 313. Global Securities...................................25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.............27
SECTION 402. Application of Trust Money..........................28
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default...................................28
SECTION 502. Acceleration of Maturity; Rescission and Annulment..30
SECTION 503. Collection of Debt and Suits for Enforcement by
Trustee...........................................31
SECTION 504. Trustee May File Proofs of Claim....................31
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities........................................32
SECTION 506. Application of Money Collected......................32
SECTION 507. Limitation on Suits.................................33
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..............................33
SECTION 509. Restoration of Rights and Remedies..................34
SECTION 510. Rights and Remedies Cumulative......................34
SECTION 511. Delay or Omission Not Waiver........................34
SECTION 512. Control by Holders..................................34
SECTION 513. Waiver of Past Defaults.............................35
SECTION 514. Waiver of Stay or Extension Laws....................35
SECTION 515. Undertaking for Costs...............................35
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.................36
SECTION 602. Notice of Defaults..................................37
SECTION 603. Certain Rights of Trustee...........................37
SECTION 604. Trustee Not Responsible for Recitals or
Issuance of Securities............................38
SECTION 605. May Hold Securities.................................38
SECTION 606. Money Held in Trust.................................38
SECTION 607. Compensation and Reimbursement......................38
SECTION 608. Disqualification; Conflicting Interests.............39
SECTION 609. Corporate Trustee Required; Eligibility.............40
SECTION 610. Resignation and Removal; Appointment of Successor...40
SECTION 611. Acceptance of Appointment by Successor..............41
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business............................42
SECTION 613. Conflicting Interests...............................42
SECTION 614. Preferential Collection of Claims Against Issuers...42
SECTION 615. Appointment of Authenticating Agent.................42
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders........44
SECTION 702. Reports by Trustee..................................44
SECTION 703. Reports by Company..................................44
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms.....................................45
SECTION 802. Successor Substituted...............................46
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders..47
SECTION 902. Supplemental Indentures with Consent of Holders.....48
SECTION 903. Execution of Supplemental Indentures................49
SECTION 904. Effect of Supplemental Indentures...................49
SECTION 905. Conformity with Trust Indenture Act.................49
SECTION 906. Reference in Securities to Supplemental
Indentures........................................49
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and
Interest..........................................49
SECTION 1002. Maintenance of Office or Agency....................50
SECTION 1003. Money for Security Payments to Be Held in Trust....50
SECTION 1004. Statement by Officers as to Default................51
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article...........................52
SECTION 1102. Election to Redeem; Notice to Trustee..............52
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed..........................................52
SECTION 1104. Notice of Redemption...............................53
SECTION 1105. Deposit of Redemption Price........................53
SECTION 1106. Securities Payable on Redemption Date..............54
SECTION 1107. Securities Redeemed in Part........................54
SECTION 1108. Provisions with Respect to Any Sinking Funds.......54
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. ...............55
SECTION 1202. Defeasance and Discharge...........................56
SECTION 1203. Covenant Defeasance................................56
SECTION 1204. Conditions to Defeasance or Covenant Defeasance....57
SECTION 1205. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions..58
TELIGENT, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and the Senior Indenture
Trust Indenture
Act Section Indenture Section
ss. 310(a)(1) ............................................ 609
(a)(2) ............................................ 609
(a)(4) ............................................ 609
(a)(5) ............................................ 609
(b) ............................................ 605, 608,
610, 613
ss. 311(a) ............................................ 614
(b) ............................................ 614
ss. 312(c) ............................................ 701
ss. 313(a) ............................................ 702
(c) ............................................ 602, 702,
703
ss. 314(a) ............................................ 703
(a)(4) ............................................ 1004
(c)(1) ............................................ 102
(c)(2) ............................................ 102
(c)(3) ............................................ 102
(e) ............................................ 102
ss. 315(a) ............................................ 601
(b) ............................................ 602
(c) ............................................ 601
(d) ............................................ 601
(e) ............................................ 610
ss. 316(a)(last
sentence) ............................................ 101
("Outstanding")
(a)(1)(A) ............................................ 502, 512
(a)(1)(B) ............................................ 513
(b) ............................................ 508
(c) ............................................ 104(d)
ss. 317(a)(1) ............................................ 503
(a)(2) ............................................ 504
(b) ............................................ 1003
ss. 318(a) ............................................ 111