Exhibit 4.2
FORM OF SENIOR SUBORDINATED INDENTURE
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CENTURY COMMUNICATIONS CORP.
and
______________________________, Trustee
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INDENTURE
Dated as of ________________
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Senior Subordinated Debt Securities
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TABLE OF CONTENTS
PAGE
PARTIES.................................................................. 1
RECITALS OF THE COMPANY.................................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
Section 1.01. Definitions:
Act................................................. 2
Affiliate; control.................................. 2
Authorized Newspaper................................ 2
Bank Credit Agreement............................... 2
Bank Notes.......................................... 2
Bank Obligations.................................... 2
Board of Directors.................................. 3
Board Resolution.................................... 3
Business Day........................................ 3
Capital Stock....................................... 3
Century/Texas....................................... 3
Closing Price....................................... 3
Commission.......................................... 4
Company............................................. 4
Company Request; Company Order...................... 4
Corporate Trust Office.............................. 4
corporation......................................... 4
Currency Agreement.................................. 4
Defaulted Interest.................................. 4
Event of Default.................................... 4
GAAP................................................ 4
Holder.............................................. 5
Indenture........................................... 5
interest............................................ 5
Interest Payment Date............................... 5
Interest Swap Obligations .......................... 5
Maturity............................................ 5
Officers' Certificate............................... 5
Opinion of Counsel.................................. 5
Original Issue Discount Security.................... 5
Outstanding......................................... 5
Paying Agent........................................ 7
Person.............................................. 7
Place of Payment.................................... 7
Predecessor Security................................ 7
principal........................................... 7
principal amount.................................... 7
Redemption Date..................................... 7
Redemption Price.................................... 8
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Regular Record Date................................. 8
Reporting Date...................................... 8
Responsible Officer................................. 8
Securities.......................................... 8
Security Register and Security
Registrar......................................... 8
Senior Indebtedness................................. 8
Special Record Date................................. 9
Stated Maturity..................................... 9
Subsidiary.......................................... 10
Trustee............................................. 10
Trust Indenture Act................................. 10
U.S. Government Obligations......................... 10
Vice President...................................... 10
Section 1.02. Compliance Certificates and
Opinions.......................................... 10
Section 1.03. Form of Documents Delivered
to Trustee........................................ 11
Section 1.04. Acts of Holders............................................ 12
Section 1.05. Notices, etc. to Trustee
and Company....................................... 13
Section 1.06. Notice to Holders; Waiver.................................. 13
Section 1.07. Conflict with Trust Indenture
Act............................................... 14
Section 1.08. Effect of Headings and Table
of Contents....................................... 14
Section 1.09. Successors and Assigns..................................... 14
Section 1.10. Separability Clause........................................ 14
Section 1.11. Benefits of Indenture...................................... 15
Section 1.12. Governing Law.............................................. 15
Section 1.13. Legal Holidays............................................. 15
ARTICLE TWO
SECURITY FORMS
Section 2.01. Forms Generally............................................ 15
Section 2.02. Form of Trustee's Certificate
of Authentication................................. 16
ARTICLE THREE
THE SECURITIES
Section 3.01. Amount Unlimited; Issuable
in Series......................................... 16
Section 3.02. Denominations.............................................. 19
Section 3.03. Execution, Authentication,
Delivery and Dating............................... 19
Section 3.04. Temporary Securities....................................... 20
Section 3.05. Registration, Registration of
Transfer and Exchange............................. 21
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Section 3.06. Mutilated, Destroyed, Lost
and Stolen Securities............................. 22
Section 3.07. Payment of Interest; Interest
Rights Preserved.................................. 23
Section 3.08. Persons Deemed Owners...................................... 25
Section 3.09. Cancellation............................................... 25
Section 3.10. Computation of Interest.................................... 25
ARTICLE FOUR
SUBORDINATION OF SECURITIES
Section 4.01. Securities Subordinate to
Senior Indebtedness............................... 26
Section 4.02. Payment Over of Proceeds of
Securities on Dissolution, etc. .................. 26
Section 4.03. Subrogation................................................ 28
Section 4.04. Obligation of Company
Unconditional..................................... 29
Section 4.05. Payments on Securities Permitted........................... 29
Section 4.06. Payment Subject to Prior Payment
of Amounts Due to Holders of
Senior Indebtedness............................... 30
Section 4.07. Trustee as Holder of Senior
Indebtedness...................................... 30
Section 4.08. Trustee Entitled to Act to
Effectuate Subordination.......................... 31
Section 4.09. Provisions for Benefit of Holders
of Senior Indebtedness............................ 31
Section 4.10. Notice to Trustee to Effectuate
Subordination..................................... 32
Section 4.11. Trustee Has No Fiduciary Duty
to Holders of Senior
Indebtedness...................................... 32
Section 4.12. Modification, Extension, etc.
of Senior Indebtedness............................ 33
ARTICLE FIVE
SATISFACTION AND DISCHARGE
Section 5.01. Satisfaction and Discharge
of Indenture...................................... 33
Section 5.02. Defeasance................................................. 34
Section 5.03. Application of Trust Money................................. 36
Section 5.04. Repayment of Moneys Held by
Paying Agent...................................... 36
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ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
Section 6.01. Events of Default.......................................... 36
Section 6.02. Acceleration of Maturity;
Rescission and Annulment.......................... 38
Section 6.03. Collection of Indebtedness and
Suits for Enforcement by Trustee.................. 39
Section 6.04. Trustee May File Proofs of Claim........................... 40
Section 6.05. Trustee May Enforce Claims
Without Possession of Securities.................. 41
Section 6.06. Application of Money Collected............................. 42
Section 6.07. Limitation on Suits........................................ 42
Section 6.08. Unconditional Right of Holders
to Receive Principal, Premium
and Interest and to Convert....................... 43
Section 6.09. Restoration of Rights and
Remedies.......................................... 43
Section 6.10. Rights and Remedies Cumulative............................. 44
Section 6.11. Delay or Omission Not Waiver............................... 44
Section 6.12. Control by Holders......................................... 44
Section 6.13. Waiver of Past Defaults.................................... 44
Section 6.14. Undertaking for Costs...................................... 45
Section 6.15. Waiver of Stay or Extension Laws........................... 45
ARTICLE SEVEN
THE TRUSTEE
Section 7.01. Certain Duties and
Responsibilities.................................. 46
Section 7.02. Notice of Defaults......................................... 47
Section 7.03. Certain Rights of Trustee.................................. 48
Section 7.04. Not Responsible for Recitals
or Issuance of Securities......................... 49
Section 7.05. May Hold Securities........................................ 49
Section 7.06. Money Held in Trust........................................ 50
Section 7.07. Compensation and Reimbursement............................. 50
Section 7.08. Disqualification; Conflicting
Interests......................................... 50
Section 7.09. Corporate Trustee Required;
Eligibility....................................... 51
Section 7.10. Resignation and Removal;
Appointment of Successor.......................... 51
Section 7.11. Acceptance of Appointment by
Successor......................................... 53
Section 7.12. Merger, Conversion, Consolidation
or Succession to Business......................... 54
Section 7.13. Preferential Collection of
Claims Against Company............................ 55
(a) Segregation and Apportionment
of Certain Collections by
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Trustee, Certain Exceptions................. 55
(b) Certain Creditor Relationships
Excluded from Segregation
and Apportionment......................... 57
(c) Definitions of Certain Terms
Used in This Section...................... 58
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 8.01. Company to Furnish Trustee Names
and Addresses of Holders.......................... 59
Section 8.02. Preservation of Information;
Communications to Holders......................... 60
Section 8.03. Reports by Trustee......................................... 61
Section 8.04. Reports by Company......................................... 63
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 9.01. Company May Consolidate, etc.
Only on Certain Terms............................. 64
Section 9.02. Successor Corporation Substituted.......................... 65
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without
Consent of Holders............................... 65
Section 10.02. Supplemental Indentures with
Consent of Holders............................... 67
Section 10.03. Execution of Supplemental
Indentures....................................... 68
Section 10.04. Effect of Supplemental Indentures......................... 68
Section 10.05. Conformity with Trust Indenture
Act.............................................. 68
Section 10.06. Reference in Securities to
Supplemental Indentures.......................... 68
ARTICLE ELEVEN
COVENANTS
Section 11.01. Payment of Principal, Premium
and Interest..................................... 69
Section 11.02. Maintenance of Office or Agency........................... 69
Section 11.03. Money for Securities Payments
to Be Held in Trust.............................. 70
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Section 11.04. Corporate Existence....................................... 71
Section 11.05. Payment of Taxes and Other
Claims........................................... 71
Section 11.06. Maintenance of Properties................................. 72
Section 11.07. Waiver of Certain Covenants............................... 72
Section 11.08. Statement by Officers as to
Default.......................................... 72
Section 11.09. Further Assurances........................................ 73
ARTICLE TWELVE
REDEMPTION OF SECURITIES
Section 12.01. Applicability of Article.................................. 73
Section 12.02. Election to Redeem; Notice
to Trustee....................................... 73
Section 12.03. Selection by Trustee of
Securities to Be Redeemed........................ 74
Section 12.04. Notice of Redemption...................................... 74
Section 12.05. Deposit of Redemption Price............................... 75
Section 12.06. Securities Payable on
Redemption Date.................................. 76
Section 12.07. Securities Redeemed in Part............................... 76
Section 12.08. Securities No Longer
Outstanding After Notice
to Trustee and Deposit
of Cash.......................................... 77
Section 12.09. Conversion Arrangement on
Call for Redemption.............................. 77
ARTICLE THIRTEEN
SINKING FUNDS
Section 13.01. Applicability of Article.................................. 78
Section 13.02. Satisfaction of Sinking Fund
Payments with Securities......................... 79
Section 13.03. Redemption of Securities for
Sinking Fund..................................... 79
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.01. Exemption from Individual
Liability........................................ 80
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01. Purposes of Meetings...................................... 80
Section 15.02. Call of Meetings by Trustee............................... 81
Section 15.03. Call of Meetings by Company or
Holders.......................................... 81
Section 15.04. Qualification for Voting.................................. 82
Section 15.05. Quorum; Adjourned Meetings................................ 82
Section 15.06. Regulations............................................... 83
Section 15.07. Voting Procedure.......................................... 84
Section 15.08. Written Consent in Lieu of
Meetings......................................... 84
Section 15.09. No Delay of Rights by Meeting............................. 84
ARTICLE SIXTEEN
CONVERSION OF DEBENTURES
Section 16.01. Applicability of Article.................................. 85
Section 16.02. Right of Holders to Convert
Securities....................................... 85
Section 16.03. Issuance of Shares of Capital
Stock on Conversion.............................. 86
Section 16.04. No Payment or Adjustment for
Interest or Dividends............................ 87
Section 16.05. Adjustment of Conversion Rate............................. 88
Section 16.06. No Fractional Shares
to be Issued..................................... 92
Section 16.07. Preservation of Conversion
Rights Upon Consolidation,
Merger, Sale or Conveyance....................... 93
Section 16.08. Notice to Holders of a Series
Prior to Taking Certain
Types of Action.................................. 94
Section 16.09. Covenant to Reserve Shares
for Issuance on Conversion
of Securities.................................... 95
Section 16.10. Compliance With Governmental
Requirements..................................... 95
Section 16.11. Payment of Taxes Upon
Certificates for Shares
Issued Upon Conversion........................... 95
Section 16.12. Trustee's Duties With Respect
to Conversion Provisions......................... 96
ARTICLE SEVENTEEN
MISCELLANEOUS
Section 17.01. Counterparts.............................................. 96
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TESTIMONIUM............................................................... 97
SIGNATURES AND SEALS...................................................... 00
XXXXXXXXXXXXXXX
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XXXXXXXXX, dated as of ___________________________, from CENTURY
COMMUNICATIONS CORP., a corporation duly organized and existing under the laws
of the State of New Jersey (the "Company"), having its principal office at 00
Xxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxxxxxxx 00000, to _________________________, as
Trustee (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 unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) 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.
Certain terms, used principally in Article Seven, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person shall mean any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the possession of the power
to direct or cause the direction of the management or policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
agreement or otherwise; and the terms "controlled by" and "under common control
with" have meanings correlative to the foregoing.
"Authorized Newspaper" shall mean a newspaper of general circulation
in the Borough of Manhattan, The City of New York, and customarily published on
each Business Day, currently expected to be The Wall Street Journal (National
Edition). Where successive publications are required to be made in an Authorized
Newspaper, the successive publications may be made in the same or different
newspapers meeting the foregoing requirements and in each case on any Business
Day.
"Bank Credit Agreement" means the Eighth Restated Credit Agreement
dated as of July 10, 1990 among Century/ Texas and Century Investors, Inc. as
borrowers, Citibank, N.A. as Agent, and the Lenders named therein, as the same
may be amended.
"Bank Notes" means the promissory notes issued pursuant to the Bank
Credit Agreement.
"Bank Obligations" means all obligations of the Company now or
hereafter existing under its Third Restated Pledge and Guaranty Agreement dated
July 10, 1990 (as the same may be amended, supplemented, modified or restated
from time to time and any renewals and extensions thereof) of the obligations of
Century/Texas under the Bank Credit Agreement and the Bank Notes, whether for
principal, interest (including, without limitation, interest, as provided in the
Bank Notes, accruing after the filing of a petition initiating any proceeding
referred to in Sections 6.01(5) and (6)), reimbursement of amounts drawn under
letters of credit
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issued pursuant to the Bank Credit Agreement, fees, expenses or otherwise.
"Board of Directors" means either the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
"Capital Stock" shall mean, when used to refer to "Capital Stock" into
which Securities of a particular series are convertible, stock of any class of
the Company into which Securities of such series are convertible in accordance
with their terms (as specified as contemplated by Section 3.01).
"Century/Texas" shall mean Century Communications Corp., a Texas
corporation, a wholly owned subsidiary of the Company.
"Closing Price," on any day when used with respect to any class of
Capital Stock, shall mean (i) if the stock is then listed or admitted to trading
on a national securities exchange in the United States, the last reported sale
price, regular way, for the stock as reported in the consolidated transaction or
other reporting system for securities listed or traded on such exchange, or (ii)
if the stock is listed on the National Association of Securities Dealers, Inc.
Automated Quotations System National Market System (the "NASDAQ National Market
System"), the last reported sale price, regular way, for the stock, as reported
on such list, or (iii) if the stock is not so admitted for trading on any
national securities exchange or the NASDAQ National Market System, the average
of the last reported closing bid and asked prices reported by the National
Association of Securities Dealers, Inc. Automated Quotations System as furnished
by any member in good standing of the National Association of Securities
Dealers, Inc. selected from time to time by the Company for that purpose or as
quoted by the National Quotation Bureau Incorporated. In the event that no such
quotation is available for any day, the Board of Directors shall be entitled to
determine the
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current market price on the basis of such quotations as it considers
appropriate.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
__________________ at which at any particular time its corporate trust business
shall be administered.
"corporation" includes corporations, associations, companies and
business trusts.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
against fluctuations in currency values.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Event of Default" has the meaning specified in Section 6.01.
"GAAP" shall mean generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession as in effect from time to time.
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"Holder" means a Person in whose name a Security is registered in the
Security Register.
"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 form and terms of particular series of Securities
established as contemplated by Section 3.01.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security.
"Interest Swap Obligations" shall mean the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities
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theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities or portions thereof for whose payment or redemption
money or, as provided in Section 5.02 hereof, U.S. Government Obligations,
in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or, except for purposes
of Section 5.01, set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(iv) Securities converted into Capital Stock in accordance with
Article Sixteen hereof, if the terms of such Securities provide for
convertibility pursuant to Section 3.01;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, (i) the principal
amount of an 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 such determination upon acceleration of the maturity
thereof pursuant to Section 6.01 and (ii) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, or
upon such determination as to the presence of a quorum, only Securities which
the Trustee knows to be so owned shall be
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so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"principal" of a debt security, including any Security, on any day and
for any purpose means the amount (including, without limitation, in the case of
an Original Issue Discount Security, any accrued original issue discount, but
excluding interest) that is payable with respect to such debt security as of
such date and for such purpose (including, without limitation, in connection
with any sinking fund, upon any redemption at the option of the Company upon any
purchase or exchange at the option of the Company or the holder of such debt
security and upon any acceleration of the maturity of such debt security).
"principal amount" of a debt security, including any Security, means
the principal amount as set forth on the face of such debt security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
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"Redemption Price," when used with respect to any Security to be
redeemed, means the price (exclusive of accrued interest, if any) at which it is
to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.01.
"Reporting Date" shall mean, when used with respect to any series of
Securities, the date (and each successive anniversary thereof) established by a
Board Resolution pursuant to Section 3.01 which shall be a date no more than ten
months from the date of the initial issuance of such series of Securities under
this Indenture.
"Responsible Officer," when used with respect to the Trustee, means
any officer assigned to and working in the corporate trust department of the
Trustee, or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his or her knowledge of and familiarity
with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Senior Indebtedness" shall mean (a) the Bank Obligations; (b) the
principal of (and premium, if any) and interest on (i) all other indebtedness
for money borrowed by the Company, whether outstanding on the date of this
Indenture or hereafter created or incurred, (ii) all other indebtedness for
money borrowed by another Person in which the Company has an equity interest or
has the right to purchase an equity interest, and guaranteed in whole or in part
directly or indirectly by the Company (whether such guarantee is outstanding on
the date of this Indenture or hereafter created or incurred), or (iii) all
indebtedness constituting purchase money indebtedness for the payment of which
the Company is directly or contingently liable, whether outstanding on the date
of this Indenture or hereafter created or incurred; (c) any obligation of the
Company to purchase or guarantee indebtedness of, to supply funds to or to
invest in, another Person in which the Company has an equity interest or has the
right to purchase an equity interest (whether such obligation is outstanding
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on the date of this Indenture or is hereafter created or incurred); (d) any
obligation of the Company to any Person in respect of surety or similar bonds
issued by such Person in connection with entering into, renewing, extending or
maintaining any cable television franchise granted by a governmental authority
or any construction in respect of any cable television system by the Company or
any other Person in which the Company has an equity interest or has the right to
purchase an equity interest; (e) any obligation of the Company to compensate,
reimburse or indemnify an issuer with respect to any letter of credit issued at
the request of or for the account of the Company; (f) any obligation of the
Company under any Interest Swap Obligations or Currency Agreement (other than
any Interest Swap Obligations or Currency Agreement the payments with respect to
which correspond to payments on, or one of the events permitting the early
termination of which is expressly connected to, any indebtedness of the Company
which is expressed to be subordinate to other indebtedness of the Company or to
rank on a parity with the Securities); and (g) all renewals, extensions or of
any such obligations, indebtedness and guarantees; provided, however, that if,
by the terms of the instrument creating or evidencing any obligation,
indebtedness or guarantee referred to in clauses (a), (b), (c), (d), (e), (f)
and (g), above, it is expressly provided that such obligation, indebtedness or
guarantee is subordinate to all other indebtedness of the Company or is not
superior in right of payment to the Securities or to other indebtedness which is
pari passu with or subordinated to the Securities, such obligation, indebtedness
or guarantee shall not be included as Senior Indebtedness; and, provided,
further, that Senior Indebtedness shall not include the Securities and any other
obligation, indebtedness or guarantee that is created or evidenced by an
instrument the terms of which expressly provide that such obligation,
indebtedness or guarantee ranks pari passu with the Securities. As used in the
preceding sentence the term "purchase money indebtedness" shall mean
indebtedness evidenced by a note, debenture, bond or other instrument or any
other written obligation to pay money (whether or not secured by any lien or
other security interest) issuer or assumed as all or a part of the consideration
for the acquisition of property, assets or securities whether by purchase,
merger, consolidation or otherwise.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity," when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the
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fixed date on which the principal of such Security or such instalment of
principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and as in force at the date as of which this instrument was executed,
except as provided in Section 10.05.
"U.S. Government Obligations" has the meaning specified in Section
5.02.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent
(including any covenants compliance with which constitute a condition
precedent), if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent (including any covenants
compliance with which constitutes a condition 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
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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 annual
certificates provided pursuant to Section 11.08) 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 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or Opinion of
Counsel, or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel or
representation by counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless
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such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing or by the record of the Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article Fifteen; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or any such record is delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments or such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or voting at
such meeting. 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. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 15.07 and the record so proved
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, or may be
proved in such other manner as shall be deemed sufficient by the Trustee. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same,
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may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company or the Trustee, as applicable, may set a date for the
purpose of determining the Holders of Securities entitled to consent, vote or
take any other action referred to in this Section 1.04, which date shall be not
less than 10 days nor more than 60 days prior to the taking of the consent, vote
or other action.
SECTION 1.05. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of the 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 and, unless otherwise
herein expressly provided, any such document shall be deemed to be
sufficiently made, given, furnished or filed upon its receipt by a
Responsible Officer of the Trustee, 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 instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in
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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. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall 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 regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act
through operation of Section 318(c), such imposed duties shall control.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders and to the extent provided in Article Four the holders
of Senior Indebtedness, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal of (and premium, if any) or interest, if any,
on such Security need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no additional interest shall
accrue with respect to the payment due on such date for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.
The Securities of each series shall be in substantially the form
established from time to time by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of such 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
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Security. If the form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.03 for the authentication and delivery of such
Securities. Any such Board Resolution or record of such action shall have
attached thereto a true and correct copy of the form of Security referred to
therein approved by or pursuant to such Board Resolution.
The Trustee's certificate of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.02. Form of Trustee's Certificate
of Authentication.
The Trustee's certificate of authentication on all Securities shall be
in substantially the following form:
This is one of the Securities of the series designated therein issued
under the within-mentioned Indenture.
______________________________
as Trustee
By ___________________________
Authorized Signature
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
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(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other securities of the
series pursuant to Section 3.04, 3.05, 3.06, 10.06 or 12.07);
(3) the date or dates on which the principal (and premium, if any) of
the Securities of the series is payable or the method of determination
thereof;
(4) the rate or rates (which may be fixed or variable), or the method
of determination thereof, at which the Securities of the series shall bear
interest, if any, including the rate of interest applicable on overdue
payments of principal or interest, if different from the rate of interest
stated in the title of the Security, the date or dates from which such
interest shall accrue or the method of determination thereof, the Interest
Payment Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on any Interest Payment Date;
(5) the Paying Agent or Paying Agents for the Securities of the series
if other than the Trustee;
(6) the Place of Payment of the Securities of the series if other than
the Corporate Trust Office of the Trustee;
(7) if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
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(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
6.02;
(11) if the provisions of Section 5.02 of this Indenture are to apply
to the Securities of the series, a statement indicating the same;
(12) any deletions from or modifications of or additions to the Events
of Default set forth in Section 6.01 pertaining to the Securities of the
series;
(13) the form of the Securities of the series;
(14) the obligation, if any, of the Company to permit the conversion
of the Securities into Capital Stock and the terms and conditions upon
which such conversion shall be effected (including, without limitation, the
initial conversion rate, the conversion period and any other provision in
addition to or in lieu of those set forth in this Indenture relative to
such obligation);
(15) any other terms of a particular series and any other provisions
expressing or referring to the terms and conditions upon which the
Securities of that series are to be issued, which terms and provisions are
not in conflict with the provisions of this Indenture or do not adversely
affect the rights of Holders of any other series of Securities then
Outstanding); provided, however, that the addition to or subtraction from
or variation of Articles Five, Six, Nine and Eleven (and Section 1.01
insofar as it relates to the definition of certain terms as used in such
Articles) with regard to the Securities of a particular series shall not be
deemed to constitute a conflict with the provisions of those Articles; and
(16) the Reporting Date of the Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Four. The Securities of all series shall
rank on a parity in right of payment.
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If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.02. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.01. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication,
Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive and (subject to Section 7.01) shall be fully protected in
relying upon the documents specified in Section 314 of the Trust Indenture Act,
and, in addition:
(a) a Board Resolution relating thereto, and if applicable, an
appropriate record of any action taken pursuant to such Board Resolution,
certified by the Secretary or Assistant Secretary of the Company;
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(b) an executed supplemental indenture, if any; and
(c) an Opinion of Counsel which shall state
(1) that the form and terms of such Securities have been established
by or pursuant to Board Resolutions, by a supplemental indenture or by both
such resolution or resolutions and such supplemental indenture in
conformity with the provisions of this Indenture;
(2) that the supplemental indenture, if any, when executed and
delivered by the Company and the Trustee, will constitute a valid and
legally binding obligation of the Company; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles, and will be entitled to
the benefits of this Indenture.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its 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, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
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reproduced or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
SECTION 3.05. Registration, Registration of
Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and Stated Maturity.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
an equal ag-
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xxxxxxx xxxxxxxxx xxxxxx, xxxx 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 which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt and entitled to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing with such signature
guaranteed by a commercial bank reasonably acceptable to the Trustee or by a
member of a national securities exchange.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 10.06 or 12.07 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities 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 that series selected for redemption under Section 12.03 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange of any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
SECTION 3.06. Mutilated, Destroyed, Lost
and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
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If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest
Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
At the option of the Company, interest on the Securities of any series
that bear interest may be paid by mailing a check to the address of the Person
entitled
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thereto as such address shall appear in the Security Register.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
("Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
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(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 3.07) 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 3.09. Cancellation.
All Securities surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment or analogous obligation shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and promptly shall be canceled by it
and, if surrendered to the Trustee, shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered promptly
shall be canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of as directed by a Company Order.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the
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Securities of each series shall be computed on the basis of a year of twelve
30-day months.
ARTICLE FOUR
SUBORDINATION OF SECURITIES
SECTION 4.01. Securities Subordinate to Senior
Indebtedness.
The Company covenants and agrees, and each Holder of Securities of any
series by his acceptance thereof, whether upon original issue or upon
registration of transfer or assignment, likewise covenants and agrees, that the
indebtedness evidenced by the Securities of such series, including the principal
thereof (and premium, if any) and interest thereon, shall be subordinated and
subject in right of payment, to the extent and in the manner set forth in this
Article, to the prior payment in full of all Senior Indebtedness, whether now
outstanding or hereafter incurred.
SECTION 4.02. Payment Over of Proceeds of
Securities on Dissolution, etc.
Upon any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to creditors upon any
dissolution or winding up or total or partial liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, or upon an assignment for the benefit of
creditors or any other marshalling of the assets and liabilities of the Company
or otherwise:
(a) all principal (and premium, if any) and interest due on all Senior
Indebtedness shall first be paid in full, or payment thereof provided for
in money or money's worth, before the Holders of the Securities of any
series or the Trustee on their behalf shall be entitled to retain any
assets so paid or distributed (other than shares of stock of the Company as
reorganized or readjusted or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment,
junior to, or the payment of which is subordinated at least to the extent
provided in this Article to the payment of, all Senior Indebtedness which
may at the time be outstanding or to any securities issued in respect
thereof under any such plan of reorganization or readjustment) with respect
to principal (and premium, if any) and interest on the Securities of any
such series;
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(b) upon any such dissolution or winding up or liquidation or
reorganization, any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities (other than
shares of stock of the Company as reorganized or readjusted or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment, junior to, or the payment of which is
subordinated at least to the extent provided in this Article to the payment
of, all Senior Indebtedness which may at the time be outstanding or to any
securities issued in respect thereof under any such plan of reorganization
or readjustment), to which the Holders of Securities of any series or the
Trustee on behalf of such Holders would be entitled, except for the
provisions of this Article, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution directly to the holders of Senior
Indebtedness (pro rata to each such holder on the basis of the respective
amounts of Senior Indebtedness held by each such holder) or their
representatives, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or
for the holders of Senior Indebtedness, before any payment or distribution
is made to the Holders of Securities of any series; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities (other than shares of stock of the Company as
reorganized or readjusted or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment,
junior to, or the payment of which is subordinated at least to the extent
provided in this Article to the payment of, all Senior Indebtedness which
may at the time be outstanding or to any securities issued in respect
thereof under any such plan of reorganization or readjustment), shall be
received by the Trustee, any Paying Agent or the Holders of Securities of
any series before all Senior Indebtedness is paid in full, such payment or
distribution shall be paid over to the holders of such Senior Indebtedness
or their representative or representatives or to the trustee or trustees
under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued (pro rata to each such holder as
aforesaid) for application to the payment of all Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been paid in
full, after giving
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effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
(d) The consolidation or merger of the Company with or into another
corporation, or any consolidation or merger of any other corporation with
or into the Company, or the liquidation or dissolution of the Company
following the sale, transfer or lease of substantially all of the property
and assets of the Company to another corporation shall not be deemed a
dissolution, winding-up or total or partial liquidation or reorganization
of the Company or an assignment or other marshalling of the assets and
liabilities of the Company for purposes of this Section 4.02 so long as
such other corporation, as a part of any such consolidation, merger, sale,
conveyance or lease, shall comply with the conditions stated in Article
Nine.
SECTION 4.03. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the Holders
of Securities of any series shall be subrogated pro rata (based on the
respective amounts paid over for the benefit of the holders of Senior
Indebtedness) with the Holders of Securities of each other series and any other
subordinated indebtedness of the Company which by its terms ranks on a parity in
right of payment with the Securities (the Securities and such other subordinated
indebtedness being in this Section referred to as "parity indebtedness") to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to Senior Indebtedness until
the principal of (and premium, if any) and interest on the Securities of each
series shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities of any series or
the holders of other parity indebtedness, or the Trustee or the trustee with
respect to any parity indebtedness, would be entitled except for the provisions
of this Article shall, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the Holders of the Securities of any series
and the holders of other parity indebtedness, be deemed to be a payment by the
Company to or on account of the Securities, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities of any series and
the holders of other parity indebtedness on the one hand and the holders of
Senior Indebtedness on the other hand.
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Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, any Paying Agent and the Holders shall be entitled
to rely upon any order or decree of a court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending or upon a certificate of the liquidating trustee or agent or other
person making any payment or distribution to the Trustee, any Paying Agent or
the Holders of Securities of any series for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
SECTION 4.04. Obligation of Company Unconditional.
Nothing contained in this Article or elsewhere in this Indenture, or
in the Securities of any series, is intended to or shall alter or impair, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders the principal of (and premium, if any)
and interest on the Securities, as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of the Company other than the
holders of the Senior Indebtedness, nor shall anything herein or therein prevent
the Trustee or the Holders from exercising all remedies otherwise permitted by
applicable law upon an Event of Default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company otherwise payable or
delivered to the Trustee or the Holders upon the exercise of any such remedy.
SECTION 4.05. Payments on Securities Permitted.
Nothing contained in this Article or elsewhere in this Indenture, or
in the Securities of any series, shall affect the obligation of the Company to
make, or prevent the Company from making, at any time except (i) during the
pendency of any dissolution, winding up, liquidation or reorganization
proceeding referred to in Section 4.02, and (ii) during the continuance of any
default specified in Section 4.06, payments at any time of principal of (and
premium, if any) or interest on the Securities of any series or of amounts to be
available as a sinking fund or analogous obligation for the Securities of any
series.
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SECTION 4.06. Payment Subject to Prior Payment of Amounts
Due to Holders of Senior Indebtedness.
No direct or indirect payment by or on behalf of the Company on
account of the principal of (and premium, if any) or interest on Securities of
any series shall be made if, at the time of such payment, there exists a default
in the payment of all or any portion of principal of (and premium, if any) or
interest on any Senior Indebtedness (and the Trustee has received written notice
thereof), and such default shall not have been cured or waived or the benefits
of this sentence waived by or on behalf of the holders of such Senior
Indebtedness.
The restrictions in this Article on payments on account of the
principal of (and premium, if any) and interest on the Securities of any series
shall include, without limitation, payments of principal (and premium, if any)
upon mandatory or optional redemptions, redemptions through the operation of and
deposits for the sinking fund or analogous obligations and purchases of
Securities of any series by the Company; provided, however, that nothing in this
Section shall prevent (a) any payment being made in connection with a redemption
of Securities of any series if (i) notice of such redemption has been given
pursuant to Section 12.04 and (ii) prior to the time of the mailing of such
notice of redemption the Trustee shall not have received notice of any default
specified in the first paragraph of this Section with respect to any Senior
Indebtedness or notice to the effect that any such default will exist at the
date fixed for such redemption or as a result of such redemption; or (b) the
application by the Trustee or any Paying Agent of any amounts deposited, at
least three Business Days prior to the occurrence of any payment default or the
receipt of notice by the Trustee of any other default specified in the first
paragraph of this Section, with the Trustee or such Paying Agent in trust for
the purpose of paying a specified instalment or installments of interest on the
Securities of any series, to the payment of such instalment of interest.
SECTION 4.07. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this
Article in respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in Section
7.08 or elsewhere in this Indenture shall be construed to deprive the Trustee of
its rights as such holder.
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SECTION 4.08. Trustee Entitled to Act to
Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes and
directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 4.09. Provisions for Benefit of Holders
of Senior Indebtedness.
The provisions of this Article constitute a continuing offer to all
persons who in reliance upon such provisions become holders of Senior
Indebtedness. Such provisions are made for the benefit of the holders of Senior
Indebtedness and such holders are hereby made obligees hereunder to the same
extent as if their names were written herein as such, and they or each of them
may proceed to enforce such provisions.
In furtherance of the foregoing, each holder of Senior Indebtedness
(i) is hereby irrevocably authorized and empowered but shall not be obligated to
demand, xxx for, collect, receive and receipt for such holder's ratable share of
all payments and distributions in respect of the Securities which are required
to be paid or delivered to holders of Senior Indebtedness as provided herein,
and to file and prove all such claims and take all such other action in the name
of the Holders or otherwise, as such holder of Senior Indebtedness may determine
to be necessary or appropriate for the enforcement of the rights provided
herein, and (ii) may require the delivery to him by each Holder of such other
instruments confirming such authorization and such powers of attorneys, proofs
of claim, assignments of claim and other instruments, and the taking of all such
other action, as he may request in order to enable such holder of Senior
Indebtedness to enforce such holder's ratable share of all Securities and all
such payments and distributions in respect thereof.
No present or future holder of Senior Indebtedness shall be prejudiced
in any way in the rights of such holder to enforce subordination of the
Securities of all series by any act or failure to act on the part of the Company
or any such holder. Until all Senior Indebtedness has been paid in full, no
Holder of Securities of any series shall agree to, and the Company shall not
accept, any release, cancellation, discharge or forgiveness of any Securities of
such Holder.
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SECTION 4.10. Notice to Trustee to Effectuate
Subordination.
The Company shall give prompt written notice to the Trustee of any
dissolution or winding-up or total or partial liquidation or reorganization of
the Company within the meaning of Section 4.02, or of the existence of any
default specified in Section 4.06. Notwithstanding any of the provisions of this
Article or any other provision of this Indenture, the Trustee shall not at any
time be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee, or the taking of any
other action by the Trustee pursuant to this Article, unless and until the
Trustee shall have received written notice thereof from the Company or from one
or more holders of Senior Indebtedness or from any trustee therefor; and, prior
to the receipt of any such written notice the Trustee shall be entitled in all
respects to assume that no such facts exist; provided, however, that, (i) except
as otherwise provided in this Section or in Section 4.05 or 4.06, if prior to
three Business Days before the date upon which by the terms hereof any such
payment of the principal of (and premium, if any) or interest on any Security
shall be due and payable, the Trustee shall not have received the notice
provided for in this Section, then the Trustee and any Paying Agent shall have
full power and authority to receive such payment and to apply the same to the
purpose for which it was received, and shall not be affected by any notice to
the contrary which may be received by it on or after such date; and (ii) if
prior to the time of the mailing of notice of redemption of any Securities
pursuant to Section 12.04 the Trustee shall not have received such notice, then,
anything contained in this Article to the contrary notwithstanding, the Trustee
shall have full power and authority to receive any payment and to apply the same
to the redemption of such Securities, and shall not be affected by any notice to
the contrary which may be received by it on or after such time of mailing. The
Trustee and any Paying Agent shall be entitled to rely conclusively on the
delivery to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness or a trustee on behalf of such holder to establish
that the notice provided for in this Section was given by a holder of Senior
Indebtedness or a trustee on behalf of any such holder or holders.
SECTION 4.11. Trustee Has No Fiduciary Duty to
Holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article, and no implied covenants or
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obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of the Senior Indebtedness. The Trustee shall
not be liable to any holder of Senior Indebtedness if the Trustee shall
mistakenly, but in good faith, pay over or transfer to Holders, the Company or
any other Person money or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article.
SECTION 4.12. Modification, Extension, etc.
of Senior Indebtedness.
The holders of Senior Indebtedness may, without affecting in any
manner the subordination of the payment of the principal of (and premium, if
any) and interest on the Securities of any series, at any time or from time to
time and in their absolute discretion, change the manner, place or terms of
payment, change or extend the time of payment of, or renew or alter, any Senior
Indebtedness, or amend or supplement any instrument pursuant to which any Senior
Indebtedness is issued, or exercise or refrain from exercising any other of
their rights under the Senior Indebtedness including, without limitation, the
waiver of default thereunder, all without notice to or assent from the Holders
or the Trustee.
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute such instruments as may be requested by
the Company acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.06 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 11.03) have been
delivered to the Trustee for cancellation; or
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(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation (other than Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.06),
for principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company 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.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07 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 5.03 and the last
paragraph of Section 11.03 shall survive.
SECTION 5.02. Defeasance.
Provided that the same has been duly authorized with respect to
Securities of a particular series pursuant to Section 3.01(11), if, at any time
after the date hereof, the Company shall deposit with the Trustee, in trust for
the benefit of the Holders thereof, (i) funds sufficient to pay, or (ii) U.S.
Government Obligations (as defined below) as will, or will together with the
income thereon without
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consideration of any reinvestment thereof, be sufficient to pay all sums due for
the principal of (and premium, if any) and interest, if any, on the Securities
of such series, as they shall become due from time to time, and shall pay all
costs, charges and expenses incurred or to be incurred by the Trustee in
relation thereto or in carrying out the provisions of this Indenture, this
Indenture shall cease to be of further effect with respect to Securities of such
series (except as to (i) the Company's obligations, as the case may be, with
respect to Securities of such series under Sections 3.05, 3.06 and 11.02, (ii)
rights of Holders to receive payments of the principal of (and premium, if any)
and interest, if any, on the Securities of such series as they shall become due
from time to time and other rights, duties and obligations of Holders as
beneficiaries hereof with respect to the amounts so deposited with the Trustee,
(iii) rights of conversion of any Security, the terms of which provide for
conversion (which shall continue in full force and effect pursuant to the terms
set forth in Article Sixteen to the extent provided for in such terms), and (iv)
the rights, obligations and immunities of the Trustee hereunder (for which
purposes the Securities of such series shall be deemed outstanding)), and the
Trustee, on the written request of the Company, accompanied by the Officer's
Certificate and Opinion of Counsel required by Section 1.02, shall execute and
deliver to the Company such instruments as shall be requisite to evidence the
satisfaction thereof with respect to Securities of such series.
As used in this Article Five, "U.S. Government Obligations" means
securities that are (i) direct obligations of the United States of America for
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation of the United States of
America, which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof, and will also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specified payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
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SECTION 5.03. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 11.03, all
money deposited with the Trustee pursuant to Sections 5.01 and 5.02 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.
SECTION 5.04. Repayment of Moneys Held by Paying Agent.
Any money deposited with the Trustee or any other Paying Agent
remaining unclaimed by the holders of any Securities for two years and eleven
months after the date upon which the principal of or interest on such Securities
shall have become due and payable, shall be repaid to the Company by the Trustee
or any such other Paying Agent and such holders shall thereafter be entitled to
look to the Company only as general creditors for payment thereof (unless
otherwise provided by law); provided, however, that, before the Trustee or any
such other Paying Agent is required to make any such payment to the Company, the
Trustee may, upon the request of the Company and at the expense of the Company,
cause to be published once in an Authorized Newspaper a notice that such money
remains unclaimed and that, after the date set forth in said notice, the balance
of such money then unclaimed will be returned to the Company.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
SECTION 6.01. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or 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):
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(1) default in the payment of interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days (whether or not such default shall be by reason of the
operation of the provisions of Article Four); or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity (whether or not such
default shall be by reason of the operation of the provisions of Article
Four); or
(3) default in the deposit of any sinking fund payment or analogous
obligation, when and as due by the terms of any Security of that series
(whether or not such default shall be by reason of the operation of the
provisions of Article Four); or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture or any Security of that series (other than
a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
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(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it 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 its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 6.02. Acceleration of Maturity;
Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
of the Securities of that series 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 (or specified amount) shall become
immediately due and payable, anything in this Indenture or in any of the
Securities of such series to the contrary notwithstanding; provided, however,
that payment of principal of (and premium, if any) and interest on the
Securities of such series shall remain subordinated to the extent provided in
Article Four.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
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Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that 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 all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 6.03. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days,
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation
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when the same becomes due pursuant to the terms of any Security,
the Company, upon demand of the Trustee, will pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal, including any sinking fund payment or analogous
obligations (and premium, if any) and interest, if any, and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 6.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
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(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents and take such other
actions, including participating as a member, voting or otherwise, of any
official committee of creditors appointed in such matter, 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 claim and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding except as aforesaid,
to vote for the election of a trustee in bankruptcy or similar person or to
participate as a member, voting or otherwise, on any committee of creditors.
SECTION 6.05. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
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SECTION 6.06. Application of Money Collected.
Subject to the provisions of Article Four, any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
7.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company, its
successors or assigns, or to whomever may be so lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
SECTION 6.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60- day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 6.08. Unconditional Right of Holders
to Receive Principal, Premium
and Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment (subject to the provisions of Article Four) of the principal of
(and premium, if any) and (subject to Section 3.07) interest on such Security on
the Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date), the right, which is also absolute and
unconditional, to require the conversion of his Securities pursuant to Article
Sixteen hereof if the terms of such Securities provide for convertibility
pursuant to Section 3.01 and the right to institute suit for the enforcement of
any such payment or of such right to convert, and such rights shall not be
impaired without the consent of such Holder.
SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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SECTION 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder 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 6.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Holders of the Securities of such series not
taking part in such direction, or to the Holders of the Securities of any
other series, and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may
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on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Ten cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 6.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
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, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security on
or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 6.15. 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, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby ex-
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pressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions 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 which by any provision hereof
are specifically 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 but need not verify the
accuracy of the contents thereof or whether procedures specified by or
pursuant to the provisions of this Indenture have been followed in the
preparation thereof.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise 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 man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) 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 wilful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
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(2) 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;
(3) 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, determined as provided in Section 6.12, 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
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.02. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, 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 fund or analogous obligation instalment 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 or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 6.01(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the
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term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION 7.03. Certain Rights of Trustee.
Subject to the provisions of Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) 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
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inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be deemed to have notice or knowledge of any
matter unless a Responsible Officer assigned to and working in the
Trustee's corporate trust department has actual knowledge thereof or unless
written notice thereof is received by the Trustee at the Corporate Trust
Office and such notice references the Securities generally, the Company or
this Indenture. Whenever reference is made in this Indenture to an Event of
Default, such reference shall, insofar as determining any liability on the
part of the Trustee is concerned, be construed to refer only to an Event of
Default of which the Trustee is deemed to have knowledge in accordance with
this paragraph; and
(i) the permissive right of the Trustee to take or refrain from taking
any actions enumerated in this Indenture shall not be construed as a duty.
SECTION 7.04. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate 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. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 7.05. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 7.08 and 7.13, 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.
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SECTION 7.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder.
SECTION 7.07. 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 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, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses,
including reasonable attorneys' fees, of defending itself against any claim
or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee, except funds held in
trust for the benefit of the Holders of particular Securities.
SECTION 7.08. 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 this
Indenture with respect to Securities of any particular
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series of Securities other than that series. 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 7.09. Corporate Trustee Required; Eligibility.
There shall at all times be a corporate Trustee hereunder which
complies with the requirements of Section 310(a) of the Trust Indenture Act,
having a combined capital and surplus of at least $5,000,000, subject to
supervision or examination by Federal or State authority and having its
Corporate Trust Office in ____________________________. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 7.10. Resignation and Removal; Appointment
of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 7.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 7.11 shall
not have been delivered to the Trustee within 10 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 7.08(a) after
written request therefor by the Company
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or by any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 7.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 6.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 7.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
7.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 7.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
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all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event to all Holders of Securities of such series as
their names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
SECTION 7.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3)
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shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 7.12. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
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as if such successor Trustee had itself authenticated such Securities.
SECTION 7.13. Preferential Collection of Claims
Against Company.
(a) Subject to subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities, as defined in
subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three-month period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors, in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made in cash, securities
or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable State law;
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(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such
three-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
subsection (c) of this Section, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting
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thereon receipts on account of the indebtedness represented by their respective
claims from all sources other than from such dividends and from the funds and
property so held in such special account. As used in this paragraph, with
respect to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
whether such distribution is made in cash, securities or other property, but
shall not include any such distribution with respect to the secured portion, if
any, of such claim. The court in which such bankruptcy, receivership or
proceeding for reorganization is pending shall have jurisdiction (i) to
apportion among the Trustee, the Holders and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special account and proceeds thereof, or (ii) in lieu of
such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions to
be made to the Trustee and the Holders and the holders of other indenture
securities with respect to their respective claims, in which event it shall not
be necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three-month period shall be subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such three-month period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
of this Section a creditor relationship arising from:
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(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as defined in subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable;
(2) the term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section and (iii) under
which a default exists at the time of
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the apportionment of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, xxxx of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities at the
time in question; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.01. Company to Furnish Trustee Names
and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, either (i) not later than June 1 and November 1 in
each year in the case of Original Issue Discount Securities of any series
which by their terms do not bear interest prior to Maturity, or (ii) not
more than 15 days after each Regular Record Date in the case of Securities
of any other series, a list, each in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities
of such series as of the preceding June 1 or
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November 1 or as of such Regular Record Date, as the case may be; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar
with respect to Securities of any series, no such lists need be furnished.
SECTION 8.02. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 8.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 8.01 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit to such other Holders, then the Trustee shall, within five business
days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 8.02(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 8.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder
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whose name and address appear in the information preserved at the time by the
Trustee in accordance with Section 8.02(a) a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held responsible by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 8.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 8.02(b).
SECTION 8.03. Reports by Trustee.
(a) Within 60 days after the first Reporting Date occurring subsequent
to the initial issuance of Securities hereunder and within 60 days after each
Reporting Date occurring thereafter, the Trustee shall transmit by mail to the
Holders, as hereinafter provided, a brief report (but in no event shall such
report be transmitted more than twelve months after the date of the initial
issuance of the Securities in the case of the first such report and at stated
intervals of more than twelve months in the case of each subsequent report)
dated as of such Reporting Date with respect to any of the following events
which may have occurred during the twelve months preceding the date of such
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report (but if no such event has occurred within such period, no report need be
transmitted):
(1) any change to its eligibility under Section 7.09 and its
qualifications under Section 7.08, or in lieu thereof, if to the best of
its knowledge it has continued to be eligible and qualified under said
Sections, a written statement to such effect;
(2) the creation of or any material change to a relationship specified
in Section 310(b)(1) through Section 310(b)(10) of the Trust Indenture Act;
(3) the character and amount of any advances (and, if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities, on any property or funds held or collected
by it as Trustee, except that the Trustee shall not be required (but may
elect) to report such advances if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the principal amount of the Securities
Outstanding for which it is Trustee on the date of such report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 7.13(b)(2), (3),
(4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 7.02.
(b) The Trustee shall transmit by mail to the Holders, as hereinafter
provided, a brief report with
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respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities, on property or funds held or collected by it as Trustee and
which it has not previously reported pursuant to this subsection, except that
the Trustee shall not be required (but may elect) to report such advances if
such advances remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities Outstanding for which it is Trustee at such
time, such report to be transmitted within 90 days after such time.
(c) All reports required by this Section 8.03, and all other reports
or notices which are required by any other provision of this Indenture to be
transmitted in accordance with the provisions of this Section 8.03, shall be
transmitted by mail: (i) to all registered Holders, as their names and addresses
appear in the Security Register; (ii) to such Holders of such series as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and (iii) except in the case of
reports pursuant to subsection (b) of this Section 8.03, to all Holders of such
series whose names and addresses have been furnished to or received by the
Trustee pursuant to Section 8.01. A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed on
any stock exchange.
SECTION 8.04. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by
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the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.01. Company May Consolidate, etc.
Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) in case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Securities and
the
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performance of every covenant of this Indenture on the part of the Company
to be performed or observed; and
(2) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 9.02. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 9.01, the successor corporation 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 corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without
Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities pursuant to Article Nine and to provide for
the adjustment of conversion rights pursuant to Section 16.07; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating
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that such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating
that such Events of Default are expressly being included solely to be
applicable to such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to provide for uncertificated
Securities (so long as any "registration-required obligation" within the
meaning of section 163(f)(2) of the Internal Revenue Code of 1986, as
amended, is in registered form for purposes of such section); or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 7.11(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provision with respect to matters or questions arising under
this Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
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SECTION 10.02. Supplemental Indentures
with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provision to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or alter or impair the right to convert any
Security at the rate and upon the terms provided for in this Indenture or
the form of such Security, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
6.02, or adversely affect any right of repayment at the option of the
Holder of any Security, or reduce the amount of, or postpone the date fixed
for, the payment of any sinking fund or analogous obligation, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(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) modify any of the provisions of this Section, Section 6.13 or
Section 11.07, 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.
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Notwithstanding the foregoing, no consent of the Holders shall be necessary to
permit the execution of supplemental indentures pursuant to Section 16.07. 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 the 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 10.03. 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 in its sole discretion may, but shall not be obligated
to, enter into any such supplemental indenture which adversely affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 10.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 10.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 10.06. Reference in Securities to
Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
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to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE ELEVEN
COVENANTS
SECTION 11.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the Holders of
Securities of each series that it will duly and punctually pay the principal of
(and premium, if any) and interest, if any, on the Securities of that series in
accordance with the terms of the Securities of that series and this Indenture.
SECTION 11.02. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
surrendered for registration of transfer and exchange, where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served and where the Securities may be presented for payment
or, for Securities of each series that is convertible, for conversion. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company 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 where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to
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the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 11.03. Money for Securities Payments
to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on the Securities of
that series, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act or of any failure by the Company (or by any
other obligor on the Securities of that series) to make any payment of the
principal of (and premium, if any) or interest, if any, on the Securities of
such series when the same shall be due and payable.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of business on each
due date of the principal of (and premium, if any) or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest, if any, so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal
(and premium, if any) or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to act.
If the Company shall appoint a Paying Agent other than the Trustee for
any series of Securities, it will cause such Paying Agent 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, if any, on the Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and
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(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 with respect to one or more or all series of
Securities hereunder or for any other reason, pay or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust for any such series
by the Company or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request subject to applicable
abandoned property and escheat law, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once a week for two consecutive weeks (in each case on any day of
the week) in an Authorized Newspaper notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 11.04. Corporate Existence.
Subject to Article Nine, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 11.05. Payment of Taxes and Other Claims.
The Company will, and will cause each Subsidiary to, pay or discharge
or cause to be paid or discharged, before the same shall become delinquent, (1)
all taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or
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property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that neither the
Company nor any Subsidiary shall be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 11.06. Maintenance of Properties.
The Company will cause all its properties used or useful in the
conduct of its business to be maintained and kept in reasonably good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly conducted
at all times; provided, however, that nothing in this Section shall prevent the
Company from discontinuing the operation or maintenance of any of its properties
if such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business and not disadvantageous in any material respect to the
Holders of the Securities of any series.
SECTION 11.07. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 11.04, 11.05 and 11.06, with
respect to the Securities of any series, if before the time for such compliance
the Holders of at least 66 2/3% in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
SECTION 11.08. Statement by Officers as to Default.
The Company will, within 90 days after the close of each fiscal year,
commencing with the first fiscal year following the issuance of Securities of
any series under this Indenture, file with the Trustee a certificate of the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company, covering the period from the date of issuance
of such Securities to
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the end of the fiscal year in which such Securities were issued, in the case of
the first such certificate, and covering the preceding fiscal year in the case
of each subsequent certificate, and stating whether or not, to the knowledge of
the signer, the Company has complied with all conditions and covenants on its
part contained in this Indenture, and, if the signer has obtained knowledge of
any default by the Company in the performance, observance or fulfillment of any
such condition or covenant, specifying each such default and the nature thereof.
For the purpose of this Section 11.08, compliance shall be determined without
regard to any grace period or requirement of notice provided pursuant to the
terms of this Indenture.
SECTION 11.09. Further Assurances.
From time to time whenever reasonably demanded by the Trustee, the
Company will make, execute and deliver or cause to be made, executed and
delivered any and all such further and other instruments and assurances as may
be reasonably necessary or proper to carry out the intention or facilitate the
performance of the terms of this Indenture.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 12.01. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
SECTION 12.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
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SECTION 12.03. Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series; provided, however, that
Securities of such series registered in the name of the Company shall be
excluded from any such selection for redemption until all Securities of such
series not so registered shall have been previously selected for redemption. For
the purposes of such selection in case of redemption of less than all the
Securities of any series, the Trustee and the Company shall have the option to
treat as Outstanding Securities any Securities of such series which are
surrendered for conversion after the fifteenth day immediately preceding the
mailing of notice of such redemption, and need not treat as Outstanding
Securities any Securities authenticated and delivered during such period in
exchange for the unconverted portion of any Securities converted in part during
such period.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 12.04. Notice of Redemption.
Notice of redemption shall be given not less than 10 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,
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(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) if applicable, the current conversion price or rate,
(6) if applicable, that the right of the Holder to convert Securities
called for redemption shall terminate at the close of business on the
Redemption Date (or such other day as may be specified as contemplated by
Section 3.01 for Securities of any series),
(7) if applicable, that Holders who want to convert Securities called
for redemption must satisfy the requirements for conversion contained in
such Securities,
(8) that, subject to Section 16.04, interest, if any, accrued to the
date fixed for redemption will be paid as specified in said notice,
(9) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(10) that the redemption is for a sinking fund, if such is 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. No such notice shall be
given at any time when the Company or the Trustee shall have received notice
that there exists a default specified in the first paragraph of Section 4.06 or
that such a default will exist at the date fixed for such redemption or as a
result of such redemption.
SECTION 12.05. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 11.03) an amount of
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money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date, other than any Securities of such series
called for redemption on such date which have been converted prior to the date
of such deposit.
SECTION 12.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. The right to convert
such Securities or portions thereof, if the terms of such Securities provide for
conversion pursuant to Section 3.01, shall terminate at the close of business on
the Redemption Date or such other day as may be specified as contemplated by
Section 3.01 for Securities of such series. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, subject to Section 16.04, 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 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
If any Security called for redemption pursuant to Section 12.01 is
converted pursuant to Article Sixteen, any monies deposited with the Trustee for
the purpose of paying or redeeming any such Security shall be promptly paid to
the Company.
SECTION 12.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate
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and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series, 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.
Securities in denominations larger than $1,000 may be redeemed in part, but only
in whole multiples of $1,000.
SECTION 12.08. Securities No Longer Outstanding
After Notice to Trustee and
Deposit of Cash.
If the Company, having given notice to the Trustee as provided in
Section 12.02, shall have deposited with the Trustee or a Paying Agent, for the
benefit of the Holders of any Securities of any series or portions thereof
called for redemption in whole or in part cash or other form of payment if
permitted by the terms of such Securities (which amount shall be immediately due
and payable to the Holders of such Securities or portions thereof), in the
amount necessary so to redeem all such Securities or portions thereof on the
Redemption Date and provision satisfactory to the Trustee shall have been made
for the giving of notice of such redemption, such Securities or portions
thereof, shall thereupon, for all purposes of this Indenture, be deemed to be no
longer Outstanding, and the Holders thereof shall be entitled to no rights
thereunder or hereunder, except the right to receive payment of the Redemption
Price, together with interest accrued to the Redemption Date, on or after the
Redemption Date of such Securities or portions thereof and the right to convert
such Securities or portions thereof, if the terms of such Securities provide for
convertibility pursuant to Section 3.01 at or prior to the close of business on
the Redemption Date.
SECTION 12.09. Conversion Arrangement
on Call for Redemption.
In connection with any redemption of Securities, the Company may
arrange for the purchase and conversion of any Securities called for redemption
by an agreement with one or more investment bankers or other purchasers to
purchase such Securities by paying to the Trustee or the Paying Agent in trust
for the Holders, on or before 10:00 a.m. New York time on the Redemption Date,
an amount no less than the Redemption Price, together with interest, if any,
accrued to the Redemption Date of such Securities, in immediately available
funds. Notwithstanding anything to the contrary contained in this Article
Twelve, the obligation of the Company to pay the Redemption Price of such
Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent
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such amount is so paid by such purchasers. If such an agreement is entered into,
any Securities not duly surrendered for conversion by the Holders thereof may,
at the option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article Sixteen) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the last day
on which Securities of such series called for redemption may be converted in
accordance with this Indenture and the terms of such Securities, subject to
payment of the above amount aforesaid. The Trustee or the Paying Agent shall
hold and pay to the Holders whose Securities are selected for redemption any
such amount paid to it in the same manner as it would moneys deposited with it
by the Company for the redemption of Securities. Without the Trustee's and the
Paying Agent's prior written consent, no arrangement between the Company and
such purchasers for the purchase and conversion of any Securities shall increase
or otherwise affect any of the powers, duties, responsibilities or obligations
of the Trustee or the Paying Agent as set forth in this Indenture, and the
Company agrees to indemnify the Trustee and the Paying Agent from, and hold them
harmless against, any loss, liability or expense arising out of or in connection
with any such arrangement for the purchase and conversion of any Securities
between the Company and such purchasers, including the costs and expenses
incurred by the Trustee and the Paying Agent in the defense of any claim or
liability arising out of or in connection with the exercise or performance of
any of its powers, duties, responsibilities or obligations under this Indenture.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to
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reduction as provided in Section 13.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund
Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited or
converted pursuant to the terms of such Securities. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 13.02 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 12.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 12.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 12.06 and 12.07.
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ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations
of the Company, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, stockholders, officers or
directors, as such, of the Company or of any successor corporation, or any of
them, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom; and that any and all
such personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issuance
of the Securities.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.01. Purposes of Meetings.
A meeting of Holders of Securities of all or any series may be called
at any time and from time to time pursuant to the provisions of this Article for
any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to waive any default hereunder and its
consequences, or to take any other action authorized to be taken by the
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Holders of Securities pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor Trustee pursuant to
the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified percentage in aggregate principal amount of
the Securities of all or any series, as the case may be, under any other
provision of this Indenture or under applicable law.
SECTION 15.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders of Securities of
all or any series to take any action specified in Section 15.01, to be held at
such time and at such place in __________________________, as the Trustee shall
determine. Notice of every meeting of the Holders of Securities of all or any
series, setting forth the time and place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given to all Holders
of Securities of each series that may be affected by the action proposed to be
taken at such meeting by publication at least twice in an Authorized Newspaper
prior to the date fixed for the meeting, the first publication to be not less
than 20 nor more than 180 days prior to the date fixed for the meeting, and the
last publication to be not more than five days prior to the date fixed for the
meeting, or such notice may be given to Holders by mailing the same by first
class mail, postage prepaid, to the Holders of Securities at the time
Outstanding, at their addresses as they shall appear in the Security Register,
not less than 20 nor more than 60 days prior to the date fixed for the meeting.
Failure to receive such notice or any defect therein shall in no case affect the
validity of any action taken at such meeting. Any meeting of Holders of
Securities of all or any series shall be valid without notice if the Holders of
all such Securities Outstanding, the Company and the Trustee are present in
person or by proxy or shall have waived notice thereof before or after the
meeting.
SECTION 15.03. Call of Meetings by Company or Holders.
In case at any time the Company, by Board Resolution, or the Holders
of at least 10% in aggregate principal amount of the Securities then Outstanding
of each series that may be affected by the action proposed to be taken at
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the meeting shall have requested the Trustee to call a meeting of Holders of
Securities of all series that may be so affected to take any action authorized
in Section 15.01 by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed or made the first publication of the notice of such meeting within 30
days after receipt of such request, then the Company or the Holders in the
amount above specified may determine the time and the place in the
__________________________________________ for such meeting and may call such
meeting by mailing or publishing notice thereof as provided in Section 15.02.
SECTION 15.04. Qualification for Voting.
To be entitled to vote at any meeting of Holders a Person shall (a) be
a Holder of one or more Securities of a series affected by the action proposed
to be taken, or (b) be a Person appointed by an instrument in writing as proxy
by the Holder of one or more such Securities. The right of Holders to have their
votes counted shall be subject to the proviso in the definition of "Outstanding"
in Section 1.01. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
SECTION 15.05. Quorum; Adjourned Meetings.
At any meeting of Holders, the presence of Persons holding or
representing Securities in an aggregate principal amount sufficient to take
action on the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum. No business shall be transacted in
the absence of a quorum unless a quorum is represented when the meeting is
called to order. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request of
the Holders of Securities (as provided in Section 15.03), be dissolved. In any
other case the Persons holding or representing a majority in aggregate principal
amount of the Securities represented at the meeting may adjourn such a meeting
for a period of not less than 10 days with the same effect, for all intents and
purposes, as though a quorum had been present. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be similarly further
adjourned for a period of not less than 10 days. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 15.02 except that,
in the case of publication, such notice need be published only once but must be
given not less than five days prior to the date on which the meeting is
scheduled to be reconvened, and in the
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case of mailing, such notice may be mailed not less than five days prior to such
date.
Any Holder of a Security who has executed an instrument in writing
complying with the provisions of Section 1.04 shall be deemed to be present for
the purposes of determining a quorum and be deemed to have voted; provided,
however, that such Holder shall be considered as present or voting only with
respect to the matters covered by such instrument in writing.
Any resolution passed or decision taken at any meeting of the Holders
of Securities of any series duly held in accordance with this Section shall be
binding on all Holders of such series of Securities whether or not present or
represented at the meeting.
SECTION 15.06. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities, in regard to proof of the holding of Securities and of
the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 15.03, in which case
the Company or the Holders of Securities calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by vote of the Holders of
a majority in principal amount of the Securities represented at the meeting.
At any meeting each Holder of a Security of a series entitled to vote
at such meeting, or proxy therefor, shall be entitled to one vote for each
$1,000 principal amount (in the case of Original Issue Discount Securities, such
principal amount to be determined as provided in the definition of
"Outstanding") of Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote except as a Holder of Securities of such series or proxy therefor.
Any meeting of Holders of Securities duly called pursuant to the
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provisions of Section 15.02 or 15.03 at which a quorum is present may be
adjourned from time to time, and the meeting may be held as so adjourned without
further notice.
SECTION 15.07. Voting Procedure.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballot on which shall be subscribed the signatures of the Holders
of Securities entitled to vote at such meeting, or proxies therefor, and on
which shall be inscribed an identifying number or numbers or to which shall be
attached a list of identifying numbers of the Securities so held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of Holders of Securities shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed or published as provided in Section 15.02 and, if applicable,
Section 15.05. The record shall be signed and verified by the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 15.08. Written Consent in Lieu of Meetings.
The written authorization or consent by the Holders of the requisite
percentage in aggregate principal amount of Securities of any series herein
provided, entitled to vote at any such meeting, evidenced as provided in Section
1.04 and filed with the Trustee, shall be effective in lieu of a meeting of the
Holders of Securities of such series, with respect to any matter provided for in
this Article Fifteen.
SECTION 15.09. No Delay of Rights by Meeting.
Nothing in this Article contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders of Securities
of any or all series or any rights expressly or impliedly conferred hereunder to
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make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or the Holders of Securities of any or
all such series under any provisions of this Indenture or the Securities.
ARTICLE SIXTEEN
CONVERSION OF DEBENTURES
SECTION 16.01. Applicability of Article.
Securities of any series which are convertible into Capital Stock at
the option of the Holder shall be convertible in accordance with their terms and
(unless otherwise specified as contemplated by Section 3.01 for Securities of
any series) in accordance with this Article. Each reference in this Article
Sixteen to "a Security" or "the Securities" refers to the Securities of the
particular series that is convertible into Capital Stock. If more than one
series of Securities with conversion privileges are outstanding at any time, the
provisions of this Article Sixteen shall be applied separately to each such
series.
SECTION 16.02. Right of Holders to
Convert Securities.
Subject to and upon compliance with the terms of the Securities and
the provisions of Section 12.09 and this Article Sixteen, at the option of the
Holder thereof, any Security of any series of any authorized denomination, or
any portion of the principal amount thereof which is $1,000 or any integral
multiple of $1,000, may, at any time during the period specified in the
Securities of such series, or in case such Security or portion thereof shall
have been called for redemption, then in respect of such Security or portion
thereof until and including, but not after (unless the Company shall default in
payment due upon the redemption thereof) the close of business on the Redemption
Date except that in the case of redemption at the option of the Holder, if
specified in the terms of such Securities, such right shall terminate upon
receipt of written notice of the exercise of such option, be converted into duly
authorized, validly issued, fully paid and nonassessable shares of the Capital
Stock into which such Security is convertible as specified in such Security, at
the conversion rate for each $1,000 principal amount of Securities in effect on
the conversion date (such conversion rate reflecting the initial conversion rate
specified in such Security or, in case an adjustment) in the conversion rate has
taken place pursuant to the provisions of Section 16.05, then at the applicable
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conversion rate as so adjusted), upon surrender of the Security or Securities,
the principal amount of which is so to be converted, to the Company at any time
during usual business hours at the office or agency to be maintained by it in
accordance with the provisions of Section 11.02, accompanied by a written notice
of election to convert as provided in Section 16.03 and, if so required by the
Company and the Trustee, by a written instrument or instruments of transfer in
form satisfactory to the Company and the Trustee duly executed by the registered
Holder or his attorney duly authorized in writing. All Securities surrendered
for conversion shall, if surrendered to the Company or any conversion agent, be
delivered to the Trustee for cancellation and cancelled by it, or shall, if
surrendered to the Trustee, be cancelled by it, as provided in Section 3.09.
The initial conversion rate in respect of a series of Securities shall
be as specified in the Securities of such series. The conversion rate will be
subject to adjustment on the terms set forth in Section 16.05 or such other or
different terms, if any, as may be specified by Section 3.01 for Securities of
such series. Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of it.
SECTION 16.03. Issuance of Shares of
Capital Stock on Conversion.
As promptly as practicable after the surrender, as herein provided, of
any Security or Securities for conversion, the Company shall deliver or cause to
be delivered at its said office or agency to or upon the written order of the
Holder of the Security or Securities so surrendered a certificate or
certificates representing the number of duly authorized, validly issued, fully
paid and nonassessable shares of Capital Stock into which such Security or
Securities may be converted in accordance with the terms thereof and the
provisions of this Article Sixteen. Prior to delivery of such certificate or
certificates, the Company shall require a written notice at its said office or
agency from the Holder of the Security or Securities so surrendered stating that
the Holder irrevocably elects to convert such Security or Securities, or, if
less than the entire principal amount thereof is to be converted, stating the
portion thereof to be converted. Such notice shall also state the name or names
(with address and social security or other taxpayer identification number) in
which said certificate or certificates are to be issued. Such conversion shall
be deemed to have been made immediately prior to the close of business on the
date that such Security or Securities shall have been surrendered for conversion
and such notice shall have been received by the
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Company or the Trustee, the rights of the Holder of such Security or Securities
as a Holder shall cease at such time, the person or persons entitled to receive
the shares of Capital Stock upon conversion of such Security or Securities shall
be treated for all purposes as having become the record holder or holders of
such shares of Capital Stock at such time and such conversion shall be at the
conversion rate in effect at such time. In the case of any Security of any
series which is converted in part only, upon such conversion, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, as
requested by such Holder, a new Security or Securities of such series of
authorized denomination in aggregate principal amount equal to the unconverted
portion of such Security.
If the last day on which a Security may be converted is not a Business
Day in a place where a conversion agent is located, the Security may be
surrendered to that conversion agent on the next succeeding day that is a
Business Day.
The Company will not be required to deliver certificates for shares of
Capital Stock upon conversion while its stock transfer books are closed for a
meeting of shareholders or for the payment of dividends or for any other
purpose, but certificates for shares of Capital Stock shall be delivered as soon
as the stock transfer books shall again be opened.
SECTION 16.04. No Payment or Adjustment
for Interest or Dividends.
Unless otherwise specified as contemplated by Section 3.01 for
Securities of such series, Securities surrendered for conversion during the
period from the close of business on any Regular Record Date (or Special Record
Date for payment of defaulted interest) next preceding any Interest Payment Date
to the opening of business on such Interest Payment Date (except Securities
called for redemption on a Redemption Date within such period) when surrendered
for conversion must be accompanied by payment of an amount equal to the interest
thereon which the registered Holder is to receive on such Interest Payment Date;
provided, however, that if the Company shall default in the payment of said
interest, such funds shall be returned to the payer thereof. Payment of interest
shall be made, as of such Interest Payment Date or such date, as the case may
be, to the Holder of record as of such Regular, or Special Record Date, as
applicable. Except where Securities surrendered for conversion must be
accompanied by payment as described above, no interest on converted Securities
will be payable by the Company on any Interest Payment Date subsequent to the
date of conversion. No other payment or
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adjustment for interest or dividends is to be made upon conversion.
Notwithstanding the foregoing, upon conversion of any Original Issue Discount
Security, the fixed number of shares of Capital Stock into which such Security
is convertible delivered by the Company to the Holder thereof shall be applied,
first, to pay the accrued original issue discount attributable to the period
from the date of issuance to the date of conversion of such Security, and,
second, to pay the balance of the principal amount of such Security.
SECTION 16.05. Adjustment of Conversion Rate.
Unless otherwise specified as contemplated by Section 3.01 for
Securities of such series, the conversion rate for Securities in effect at any
time shall be subject to adjustment as follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution in the class of Capital Stock into which Securities of such series
are convertible in shares of its Capital Stock, (ii) subdivide the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a greater number of shares, (iii) combine the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a smaller number of shares, or (iv) issue by reclassification
of the shares of the class of Capital Stock into which Securities of such series
are convertible (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation) any
shares, the conversion rate for the Securities of such series in effect at the
time of the record date for such dividend or distribution, or the effective date
of such subdivision, combination or reclassification, shall be proportionately
adjusted so that the Holder of any Security of such series surrendered for
conversion after such time shall be entitled to receive the number and kind of
shares which he would have owned or have been entitled to receive had such
Security been converted immediately prior to such time. Similar adjustments
shall be made whenever any event listed above shall occur.
(b) In case the Company shall fix a record date for the issuance of
rights or warrants to all holders of the class of Capital Stock into which
Securities of such series are convertible entitling them (for a period expiring
within 45 days after such record date) to subscribe for or purchase shares of
such class of Capital Stock (or securities convertible into shares of such class
of Capital Stock) at a price per share (or, in the case of a right or warrant to
purchase securities convertible into such class of Capital
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Stock, having a conversion price per share, after adding thereto the exercise
price, computed on the basis of the maximum number of shares of such class of
Capital Stock issuable upon conversion of such convertible securities, per share
of such class of Capital Stock so issuable) less than the current market price
per share of such class of Capital Stock (as defined in subsection (d) below) on
the date on which such issuance was declared or otherwise announced by the
Company (the "Determination Date"), the number of shares of such class of
Capital Stock into which each $1,000 principal amount of Securities shall be
convertible after such record date shall be determined by multiplying the number
of shares of such class of Capital Stock into which such principal amount of
Securities was convertible immediately prior to such record date by a fraction,
of which the numerator shall be the number of shares of such class of Capital
Stock outstanding on the Determination Date plus the number of additional shares
of such class of Capital Stock offered for subscription or purchase (or in the
case of a right or warrant to purchase securities convertible into such class of
Capital Stock, the aggregate number of additional shares of such class of
Capital Stock into which the convertible securities so offered are initially
convertible), and of which the denominator shall be the number of shares of such
class of Capital Stock outstanding on the Determination Date plus the number of
shares of such class of Capital Stock obtained by dividing the aggregate
offering price of the total number of shares so offered (or, in the case of a
right or warrant to purchase securities convertible into such class of Capital
Stock, the aggregate initial conversion price of the convertible securities so
offered, after adding thereto the aggregate exercise price of such rights or
warrants computed on the basis of the maximum number of shares of such class of
Capital Stock issuable upon conversion of such convertible securities) by such
current market price. Shares of such class of Capital Stock of the Company owned
by or held for the account of the Company shall not be deemed outstanding for
the purpose of any such computation. Such adjustment shall be made successively
whenever such a record date is fixed; and to the extent that shares of such
class of Capital Stock are not delivered (or securities convertible into shares
of such class of Capital Stock are not delivered) after the expiration of such
rights or warrants (or, in the case of rights or warrants to purchase securities
convertible into such class of Capital Stock once exercised, the expiration of
the conversion right of such securities) the conversion rate shall be readjusted
to the conversion rate which would then be in effect had the adjustments made
upon the issuance of such rights or warrants (or securities convertible into
shares) been made upon the basis of delivery of only the number of shares
actually delivered. In the event that such rights or
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warrants are not so issued, the conversion rate shall again be adjusted to be
the conversion rate which would then be in effect if such record date had not
been fixed.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of the class of Capital Stock into which Securities
of such series are convertible (including any such distribution made in
connection with a consolidation or merger in which the Company is the continuing
corporation) of evidences of its indebtedness or assets (excluding any cash
dividends paid from retained earnings and dividends payable in Capital Stock for
which adjustment is made pursuant to subsection (a) above) or subscription
rights or warrants (excluding subscription rights or warrants to purchase the
class of Capital Stock into which Securities of such series are convertible),
the number of shares of such class of Capital Stock into which each $1,000
principal amount of Securities of such series shall be convertible after such
record date shall be determined by multiplying the number of shares of such
class of Capital Stock into which such principal amount of Securities was
convertible immediately prior to such record date by a fraction, of which the
numerator shall be the fair market value of the assets of the Company, after
deducting therefrom all liabilities of the Company and all preferences
(including accrued by unpaid dividends) in respect of classes of Capital Stock
having a preference with respect to the assets of the Company over such class of
Capital Stock (all as determined by the Board of Directors, whose determination
shall be conclusive, and described in a certificate signed by the Chairmen of
the Board, the President, any Vice President, the Treasurer or the Controller of
the Company, filed with the Trustee and each conversion agent) on such record
date, and of which the denominator shall be such fair market value after
deducting therefrom such liabilities and preferences, less the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive, and described in a statement filed with the Trustee and each
conversion agent) of the assets or evidences of indebtedness, so distributed or
of such subscription rights or warrants applicable, so distributed. Such
adjustment shall be made successively whenever such a record date is fixed; and
in the event that such distribution is not so made, the conversion rate shall
again be adjusted to the conversion rate which would then be in effect if such
record date had not been fixed.
(d) For the purpose of any computation under subsection (b) above and
Section 16.06, the current market price per share of the Capital Stock on any
date as of which such price is to be computed shall mean the average of the
Closing Prices for the 30 consecutive Business Days commencing 45 Business Days
before such date.
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(e) No adjustment in the conversion rate shall be required unless such
adjustment would require a cumulative increase or decrease of at least 1% in
such rate; provided, however, that any adjustments which by reason of this
subsection (e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment, and provided, further, that
adjustments shall be required and made in accordance with the provisions of this
Article Sixteen (other than this subsection (e)) not later than such time as may
be required in order to preserve the tax-free nature of a distribution for
United States income tax purposes to the Holders of Securities or the class of
Capital Stock into which such Securities are convertible. All calculations under
this Article Sixteen shall be made to the nearest cent or to the nearest
one-thousandth of a share, as the case may be. Anything in this Section 16.05 to
the contrary notwithstanding, the Company shall be entitled to make such
adjustments in the conversion rate, in addition to those required by this
Section 16.05, as it in its discretion shall determine to be advisable in order
that any stock dividend, subdivision of shares, distribution of rights to
purchase stock or securities, or distribution of securities convertible into or
exchangeable for stock hereafter made by the Company to its shareholders shall
not be taxable for United States income tax purposes.
(f) Whenever the conversion rate is adjusted, as herein provided, the
Company shall promptly file with the Trustee and with the office or agency
maintained by the Company for the conversion of Securities of such series
pursuant to Section 11.02, a certificate of a firm of independent public
accountants of recognized national standing selected by the Board of Directors
(who may be the regular accountants employed by the Company) setting forth the
conversion rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment and a computation thereof. Such certificate
shall be conclusive evidence of the correctness of such adjustment. Neither the
Trustee nor any conversion agent shall be under any duty or responsibility with
respect to any such certificate or any facts or computations set forth therein,
except to exhibit said certificate from time to time to any Holder of such
series desiring to inspect the same. The Company shall promptly cause a notice
setting forth the adjusted conversion rate to be mailed to the Holders of such
series, as their names and addresses appear upon the Security Register.
(g) In the event that at any time, as a result of shares of any other
class of Capital Stock becoming issuable in exchange or substitution for or in
lieu of shares of the class of Capital Stock into which such Securities are
convertible or as a result of an adjustment made pursuant to
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subsection (a) above, the Holder of any Security of such series thereafter
surrendered for conversion shall become entitled to receive any shares of the
Company other than shares of the class of Capital Stock into which the
Securities of such series are convertible, thereafter the number of such other
shares so receivable upon conversion of any Security shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the class of Capital Stock into
which the Securities of such series are convertible contained in subsections (a)
to (f), inclusive, above, and the provisions of this Article Sixteen with
respect to the class of Capital Stock into which the Securities of such series
are convertible shall apply on like terms to any such other shares.
(h) The conversion rate with respect to any Original Issue Discount
Securities, the terms of which provide for convertibility, shall not be adjusted
during the term of such Original Issue Discount Securities for accrued original
issue discount.
(i) In the event that the Securities of any series are convertible
into more than one class of Capital Stock, the provisions of this Section 16.05
shall apply separately to events affecting each such class.
SECTION 16.06. No Fractional Shares
to be Issued.
No fractional shares of Capital Stock shall be issued upon conversions
of Securities. If more than one Security of any series shall be surrendered for
conversion at one time by the same Holder, the number of full shares which shall
be issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities of such series (or specified
portions thereof to the extent permitted hereby) so surrendered. Instead of a
fraction of a share of Capital Stock which would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the
Company shall pay a cash adjustment in respect of such fraction of a share in an
amount equal to the same fractional interest of the current market price (as
defined in Section 16.05) per share of Capital Stock on the Business Day next
preceding the day of conversion.
SECTION 16.07. Preservation of Conversion
Rights Upon Consolidation,
Merger, Sale or Conveyance.
In case of any consolidation of the Company with, or merger of the
Company into, any other corporation (other
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than a consolidation or merger in which the Company is the continuing
corporation), or in the case of any sale or transfer of all or substantially all
of the assets of the Company, the corporation formed by such consolidation or
the corporation into which the Company shall have been merged or the corporation
which shall have acquired such assets, as the case may be, shall execute and
deliver to the Trustee, a supplemental indenture, subject to the provisions of
Articles Nine and Ten as they relate to supplemental indentures, providing that
the Holder of each Security then Outstanding of a series which was convertible
into Capital Stock shall have the right thereafter to convert such Security into
the kind and amount of shares of stock and other securities and property,
including cash, receivable upon such consolidation, merger, sale or transfer by
a holder of the number of shares of Capital Stock of the Company into which such
Securities might have been converted immediately prior to such consolidation,
merger, sale or transfer. Such supplemental indenture shall conform to the
provisions of the Trust Indenture Act of 1939 as then in effect and shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article Sixteen. Neither the
Trustee nor any conversion agent shall be under any responsibility to determine
the correctness of any provision contained in any such supplemental indenture
relating either to the kind or amount of shares of stock or other securities or
property receivable by Holders upon the conversion of their Securities after any
such consolidation, merger, sale or transfer, or to any adjustment to be made
with respect thereto and, subject to the provisions of Section 7.01, may accept
as conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, an Opinion of Counsel with respect thereto. If in the
case of any such consolidation, merger, sale or transfer, the stock or other
securities and property receivable by a Holder includes stock or other
securities and property of a corporation other than the successor or purchasing
corporation, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders as the Board of Directors shall reasonably consider
necessary. The above provisions of this Section 16.07 shall similarly apply to
successive consolidations, mergers, sales or transfers.
SECTION 16.08. Notice to Holders of a
Series Prior to Taking
Certain Types of Action.
With respect to the Securities of any series, in case:
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(a) the Company shall authorize the issuance to all holders of the
class of Capital Stock into which Securities of such series are convertible
of rights or warrants to subscribe for or purchase shares of its Capital
Stock or of any other right;
(b) the Company shall authorize the distribution to all holders of the
class of Capital Stock into which Securities of such series are convertible
of evidences of its indebtedness or assets (except for the exclusions with
respect to certain dividends set forth in Section 16.05(c));
(c) of any subdivision, combination or reclassification of the class
of Capital Stock into which Securities of such series are convertible or of
any consolidation or merger to which the Company is a party and for which
approval by the shareholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee at the office or
agency maintained for the purpose of conversion of Securities of such series
pursuant to Section 11.02, and shall cause to be mailed to the Holders of such
series, at their last addresses as they shall appear upon the Security Register,
at least ten days prior to the applicable record date hereinafter specified, a
notice stating (i) the date as of which the holders of such class of Capital
Stock to be entitled to receive any such rights, warrants or distribution are to
be determined, or (ii) the date on which any such subdivision, combination,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action is expected to become effective, and the
date as of which it is expected that holders of record of such class of Capital
Stock shall be entitled to exchange their Capital Stock of such class for
securities or other property, if any, deliverable upon such subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action. The failure to give the
notice required by this Section 16.08 or any defect therein shall not affect the
legality or validity of any distribution, right, warrant, subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action, or the vote upon any of
the foregoing. Such notice shall also be published by and at the expense of the
Company not later than the aforesaid filing date at least once in an Authorized
Newspaper.
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SECTION 16.09. Covenant to Reserve Shares
for Issuance on Conversion
of Securities.
The Company covenants that at all times it will reserve and keep
available out of each class of its authorized Capital Stock, free from
preemptive rights, solely for the purpose of issue upon conversion of Securities
of any series as herein provided, such number of shares of Capital Stock of such
class as shall then be issuable upon the conversion of all Outstanding
Securities of such series. The Company covenants that all shares of Capital
Stock which shall be so issuable shall, when issued or delivered, be duly and
validly issued shares of the class of authorized Capital Stock into which
Securities of such series are convertible, and shall be fully paid and
nonassessable, free of all liens and charges and not subject to preemptive
rights and that, upon conversion, the appropriate capital stock accounts of the
Company will be duly credited.
SECTION 16.10. Compliance with Governmental Requirements.
The Company covenants that if any shares of Capital Stock required to
be reserved for purposes of conversion of Securities hereunder require
registration or listing with or approval of any governmental authority under any
Federal or State law, pursuant to the Securities Act of 1933, as amended, or the
Securities Exchange Act, or any national or regional securities exchange on
which such Capital Stock is listed at the time of delivery of any shares of such
Capital Stock, before such shares may be issued upon conversion, the Company
will use its best efforts to cause such shares to be duly registered, listed or
approved, as the case may be.
SECTION 16.11. Payment of Taxes Upon Certificates
for Shares Issued Upon Conversion.
The issuance of certificates for shares of Capital Stock upon the
conversion of Securities shall be made without charge to the converting Holders
for any tax (including, without limitation, all documentary and stamp taxes) in
respect of the issuance and delivery of such certificates, and such certificates
shall be issued in the respective names of, or in such name as may be directed
by, the Holders of the Securities converted; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate in a name
other than that of the Holder of the Security converted, and the Company shall
not be required to issue or deliver such certificates unless or until the person
or persons
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requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
SECTION 16.12. Trustee's Duties With Respect
to Conversion Provisions.
The Trustee and any conversion agent shall not at any time be under
any duty or responsibility to any Holder to determine whether any facts exist
which may require any adjustment of the conversion rate, or with respect to the
nature or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee nor any conversion agent shall be
accountable with respect to the registration under securities laws, listing,
validity or value (or the kind or amount) of any shares of Capital Stock, or of
any other securities or property, which may at any time be issued or delivered
upon the conversion of any Security; and neither the Trustee nor any conversion
agent makes any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to make any
cash payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversions, and the Trustee, subject to the provisions of
Section 7.01, and any conversion agent shall not be responsible for any failure
of the Company to comply with any of the covenants of the Company contained in
this Article Sixteen.
ARTICLE SEVENTEEN
MISCELLANEOUS
SECTION 17.01. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
______________________________ hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
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Attest: CENTURY COMMUNICATIONS CORP.
__________________________ By____________________________
Secretary
Attest: _____________________________,
as Trustee
___________________________ By____________________________
-00-
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On the day of , , before me personally came
, to me known, who, being by me duly sworn, did depose and
say that he is of CENTURY COMMUNICATIONS
CORP., one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
[NOTARIAL SEAL]
----------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the day of , , before me
personally came , to me known, who, being by me duly sworn, did
depose and say that he is of ,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
[NOTARIAL SEAL]
----------------------------
Notary Public
CENTURY COMMUNICATIONS CORP.
Reconciliation and Tie between Indenture,
dated as of
and
Trust Indenture Act of 1939, as amended
Trust Indenture Indenture
Act Section Section
--------------- ----------
310(a)(1)..................................................... 7.09
(a)(2)..................................................... 7.09
(a)(3)..................................................... Not applicable
(a)(4)..................................................... Not applicable
(b)........................................................ 7.08, 7.10
311(a)........................................................ 7.13(a)
(b)........................................................ 7.13(b)
312(a)........................................................ 8.01, 8.02(a)
(b)........................................................ 8.02(b)
(c)........................................................ 8.02(c)
313(a)........................................................ 8.03(a)
(b)(1)..................................................... Not applicable
(b)(2)..................................................... 8.03(b)
(c)........................................................ 8.03(c)
(d)........................................................ 8.03(c)
314(a)........................................................ 8.04
(a)(4)................................................... 11.08
(b)........................................................ Not applicable
(c)(1)..................................................... 1.02
(c)(2)..................................................... 1.02
(c)(3)..................................................... Not applicable
(d)........................................................ Not applicable
(e)........................................................ 1.02
315(a)........................................................ 7.01(a)
(b)........................................................ 7.02,
8.03(a)(6)
(c)........................................................ 7.01(b)
(d)(1)..................................................... 7.01(a)
(d)(2)..................................................... 7.01(c)
(d)(3)..................................................... 7.01(c)
(e)........................................................ 6.14
316(a)(1)(A).................................................. 6.12
(a)(1)(B).................................................. 6.13
(a)(2)..................................................... Not applicable
(b)........................................................ 6.08
317(a)(1)..................................................... 6.03
(a)(2)..................................................... 6.04
(b)........................................................ 11.03
318(a)........................................................ 1.07
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
