EXHIBIT 4.14
CHOICE ONE COMMUNICATIONS INC.
AS THE COMPANY
AND
THE BANK OF NEW YORK
AS TRUSTEE
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SENIOR SUBORDINATED INDENTURE
DATED AS OF ______ __, 200__
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TABLE OF CONTENTS
PAGE
ARTICLE I Definitions and Incorporation by Reference........................1
SECTION 1.01. Definitions...................................................1
SECTION 1.02. Other Definitions.............................................7
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.............7
SECTION 1.04. Rules of Construction.........................................8
ARTICLE II The Securities...................................................8
SECTION 2.01. Form and Dating...............................................8
SECTION 2.02. Execution and Authentication..................................8
SECTION 2.03. Amount Unlimited; Issuable in Series..........................10
SECTION 2.04. Denomination and Date of Securities; Payments of Interest.....12
SECTION 2.05. Registrar and Paying Agent; Agents Generally..................13
SECTION 2.06. Paying Agent to Hold Money in Trust...........................14
SECTION 2.07. Transfer and Exchange.........................................14
SECTION 2.08. Replacement Securities........................................17
SECTION 2.09. Outstanding Securities........................................17
SECTION 2.10. Temporary Securities..........................................17
SECTION 2.11. Cancellation..................................................18
SECTION 2.12. CUSIP Numbers.................................................18
SECTION 2.13. Defaulted Interest............................................18
SECTION 2.14. Series May Include Tranches...................................18
ARTICLE III Redemption......................................................19
SECTION 3.01. Applicability of Article......................................19
SECTION 3.02. Notice of Redemption; Partial Redemptions.....................19
SECTION 3.03. Payment of Securities Called for Redemption...................20
SECTION 3.04. Exclusion of Certain Securities from Eligibility
for Selection for Redemption................................................21
SECTION 3.05.Mandatory and Optional Sinking Funds...........................21
ARTICLE IV Covenant.........................................................23
SECTION 4.01. Payment of Securities.........................................23
SECTION 4.02. Maintenance of Office or Agency...............................24
SECTION 4.03. Securityholders' Lists........................................25
SECTION 4.04. Certificate to Trustee........................................25
SECTION 4.05. Reports by the Company........................................25
SECTION 4.06. Calculation of Original Issue Discount........................25
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ARTICLE V Successor Corporation.......................................25
SECTION 5.01. When Company May Merge, Etc..............................25
SECTION 5.02. Successor Substituted....................................26
ARTICLE VI Default and Reme...........................................26
SECTION 6.01. Events of Default........................................26
SECTION 6.02. Acceleration.............................................27
SECTION 6.03. Other Remedies...........................................28
SECTION 6.04. Waiver of Past Defaults..................................29
SECTION 6.05. Control by Majority......................................29
SECTION 6.06. Limitation on Suits......................................29
SECTION 6.07. Rights of Holders to Receive Payment.....................30
SECTION 6.08. Collection Suit by Trustee...............................30
SECTION 6.09. Trustee May File Proofs of Claim.........................30
SECTION 6.10. Application of Proceeds..................................30
SECTION 6.11. Restoration of Rights and Remedies.......................32
SECTION 6.12. Undertaking for Costs....................................32
SECTION 6.13. Rights and Remedies Cumulative...........................32
SECTION 6.14. Delay or Omission Not Waiver.............................32
ARTICLE VII Trustee...................................................32
SECTION 7.01. Certain Duties and Responsibilities......................32
SECTION 7.02. Certain Rights of Trustee................................34
SECTION 7.03. Individual Rights of Trustee.............................35
SECTION 7.04. Trustee's Disclaimer.....................................36
SECTION 7.05. Notice of Default........................................36
SECTION 7.06. Reports by Trustee to Holders............................36
SECTION 7.07. Not Responsible for Recitals or Issuance of Securitie....37
SECTION 7.08. Compensation and Indemnity...............................37
SECTION 7.09. Replacement of Trustee...................................38
SECTION 7.10. Successor Trustee by Merger, Etc.........................39
SECTION 7.11. Eligibility..............................................39
SECTION 0.00.Xxxxx Held in Trust.......................................39
ARTICLE VIII Satisfaction and Discharge of Indenture; Unclaimed
Moneys...................................................39
SECTION 8.01. Satisfaction and Discharge of Indenture..................39
SECTION 8.02. Application by Trustee of Funds Deposited for
Payment of Securities....................................40
SECTION 8.03. Repayment of Moneys Held by Paying Agent.................40
SECTION 8.04. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years............................40
SECTION 8.05. Defeasance and Discharge of Indenture....................41
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SECTION 8.06. Defeasance of Certain Obligations........................42
SECTION 8.07. Indemnity for U.S. Government Obligations................43
SECTION 8.08. Reinstatement............................................43
ARTICLE IX Amendments, Supplements and Waivers........................44
SECTION 9.01. Without Consent of Holders...............................44
SECTION 9.02. With Consent of Holders..................................45
SECTION 9.03. Revocation and Effect of Consent.........................46
SECTION 9.04. Notation on or Exchange of Securities....................46
SECTION 9.05. Trustee to Sign Amendments, Etc..........................47
SECTION 9.06. Conformity with Trust Indenture Act......................47
ARTICLE X Miscellaneous...............................................47
SECTION 10.01. Trust Indenture Act of 1939.............................47
SECTION 10.02. Notices.................................................47
SECTION 10.03. Certificate and Opinion as to Conditions Precedent......48
SECTION 10.04. Statement Required in Certificate or Opinion............48
SECTION 10.05. Evidence of Ownership...................................50
SECTION 10.06. Rules by Trustee, Paying Agent or Registrar.............50
SECTION 10.07. Payment Date Other than a Business Day..................50
SECTION 10.08. Governing Law...........................................50
SECTION 10.09. No Adverse Interpretation of Other Agreements...........50
SECTION 10.10. Successors..............................................50
SECTION 10.11. Duplicate Originals.....................................50
SECTION 10.12. Separability............................................50
SECTION 10.13. Table of Contents, Headings, Etc........................50
SECTION 10.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability..........51
SECTION 10.15. Judgment Currency.......................................51
ARTICLE XI Subordination of Securities................................51
SECTION 11.01. Agreement to Subordinate................................51
SECTION 11.02. Payments to Securityholders.............................52
SECTION 11.03. Subrogation of Securities...............................53
SECTION 11.04. Authorization by Securityholders........................54
SECTION 11.05. Notice to Trustee.......................................54
SECTION 11.06. Trustee's Relation to Senior Indebtedness...............55
SECTION 11.07. No Impairment of Subordination..........................56
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INDENTURE, dated as of ______ __, 200_, between Choice One Communications
Inc., a Delaware corporation, as the Company, and The Bank of New York, a New
York banking corporation, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time of its
debentures, notes or other evidences of indebtedness to be issued in one or more
series (the "Securities") up to such principal amount or amounts as may from
time to time be authorized in accordance with the terms of this Indenture and to
provide, among other things, for the authentication, delivery and administration
thereof, the Company has duly authorized the execution and delivery of this
Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the
holders thereof, the Company and the Trustee mutually covenant and agree for the
equal and proportionate benefit of the respective holders from time to time of
the Securities or of any and all series thereof as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with") when used with respect to any Person means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"AGENT" means any Registrar, Paying Agent, transfer agent or Authenticating
Agent.
"BANK CREDIT AGREEMENT" means the Credit Agreement dated as amended and
restated on August 1, 2000 among the Company, First Union Investors, Inc. as
administrative agent, General Electric Capital Corporation as syndication agent
and Xxxxxx Xxxxxxx Senior Funding, Inc. as documentation agent, also
collectively known as the lenders, as such Agreement has been and may be further
amended, restated, supplemented or otherwise modified from time to time, and
includes any agreement extending the maturity of, or restructuring (including,
but not limited
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to, the inclusion of additional borrowers thereunder that are Subsidiaries of
the Company and whose obligations are guaranteed by the Company thereunder) all
or any portion of, the Debt under such Agreement or any successor agreements and
includes any agreement with one or more banks or other lending institutions
refinancing all or any portion of the Debt under such Agreement or any successor
agreements.
"BOARD RESOLUTION" means one or more resolutions of the board of directors
of the Company or any authorized committee thereof, certified by the secretary
or an assistant secretary to have been duly adopted and to be in full force and
effect on the date of certification, and delivered to the Trustee.
"BUSINESS DAY" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close in The City of New York, with respect
to any Security the interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits in London, or with respect to
Securities denominated in a specified currency other than United States dollars,
in the principal financial center of the country of the specified currency.
"CHANGE OF CONTROL" means the occurrence of one or more of the following
events: (i) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all, of the assets of
the Company to any Person or group (as that term is used in Section 13(d)(3) of
the Securities Exchange Act of 1934) of Persons, (ii) a Person or group (as so
defined) of Persons (other than management of the Company on the date of this
Indenture or their Affiliates) shall have become the beneficial owner of more
than [35%] of the outstanding voting stock of the Company, or (iii) during any
one-year period, individuals who at the beginning of such period constitute the
Board of Directors (together with any new director whose election or nomination
was approved by a majority of the directors then in office who were either
directors at the beginning of such period or who were previously so approved)
cease to constitute a majority of the Board of Directors.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this 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 party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article 5 of this Indenture
and thereafter means the successor.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"CREDIT FACILITY" means the unsecured subordinated debt facility entered
into on August 1, 2000, with Xxxxxx Xxxxxxx Senior Funding as sole lead
arranger.
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"CURRENCY AGREEMENT" means, with respect to any Person, any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangement designed to protect such Person or any of its Subsidiaries against
fluctuations in currency values to or under which such Person or any of its
Subsidiaries is a party or a beneficiary on the date hereof or becomes a party
or a beneficiary thereafter.
"DEBT" means, with respect to any Person at any date of determination
(without duplication), (i) all indebtedness of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) all obligations of such Person in respect of
letters of credit or bankers' acceptance or other similar instruments (or
reimbursement obligations with respect thereto), (iv) all obligations of such
Person to pay the deferred purchase price of property or services, (v) all
obligations of such Person as lessee under Capitalized Leases, (vi) all Debt of
others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person; provided that, for purposes of determining the amount
of any Debt of the type described in this clause, if recourse with respect to
such Debt is limited to such asset, the amount of such Debt shall be limited to
the lesser of the fair market value of such asset or the amount of such Debt,
(vii) all Debt of others Guaranteed by such Person to the extent such Debt is
Guaranteed by such Person, (viii) all redeemable stock valued at the greater of
its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends and (ix) to the extent not otherwise included in this definition, all
obligations of such Person under Currency Agreements and Interest Rate
Agreements.
"DEFAULT" means any Event of Default as defined in Section 6.01 and any
event that is, or after notice or passage of time or both would be, an Event of
Default.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, The
Depositary Trust Company, a limited purpose trust company organized under the
laws of the State of New York ("DTC"), unless another Person is designated as
Depositary by the Company pursuant to Section 2.03, until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Registered Global Securities of that
series.
"DESIGNATED SENIOR INDEBTEDNESS" means (i) Debt under the Bank Credit
Agreement and (ii) Debt constituting Senior Indebtedness which, at the time of
its determination, (A) has an aggregate principal amount of at least $25 million
and (B) is specifically designated in the instrument evidencing such Senior
Indebtedness as "Designated Senior Indebtedness" by the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the U.S. as in
effect from time to time applied on a basis consistent with the principles,
methods, procedures and practices employed in the preparation of the Company's
audited financial statements, including, without
7
limitation, those 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 is approved by a significant
segment of the accounting profession.
"GUARANTEE" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt or other obligation of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keepwell, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"HOLDER" or "SECURITYHOLDER" means the registered holder of any
Security.
"INDENTURE" means this Indenture as originally executed and delivered
or as it may be amended or supplemented from time to time by one or more
indentures supplemental to this Indenture entered into pursuant to the
applicable provisions of this Indenture and shall include the forms and terms of
the Securities of each series established as contemplated pursuant to Sections
2.01 and 2.03.
"INTEREST RATE AGREEMENT" means, with respect to any Person, any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement designed to protect such Person or any of
its Subsidiaries against fluctuations in interest rates to or under which such
Person or any of its Subsidiaries is a party or a beneficiary on the date hereof
or becomes a party or a beneficiary thereafter.
"LIEN" means, with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Indenture, the Company shall be deemed to own
subject to a Lien any Property which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such Property.
"OFFICER" means, with respect to the Company, the chairman of the board
of directors, the president or chief executive officer, any vice president, the
chief financial officer, the treasurer or any assistant treasurer, or the
secretary or any assistant secretary.
"OFFICERS' CERTIFICATE" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the president or chief
executive officer or a vice president and (ii) by the chief financial officer,
the treasurer or any assistant treasurer, or the secretary or any
8
assistant secretary, complying with Section 10.04 and delivered to the Trustee.
Each such certificate shall comply with Section 314 of the Trust Indenture Act
and include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 10.04.
"OPINION OF COUNSEL" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, satisfactory to the Trustee
and complying with Section 10.04. Each such opinion shall comply with Section
314 of the Trust Indenture Act and include the statements provided in Section
10.04, if and to the extent required thereby.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that 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.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon the issuance of
such Securities.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"PRINCIPAL" of a Security means the principal amount of, and, unless
the context indicates otherwise, includes any premium payable on, the Security.
"REGISTERED GLOBAL SECURITY" means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such series
in accordance with Section 2.02, and bearing the legend prescribed in Section
2.02.
"REGISTERED SECURITY" means any Security registered on the Security
Register (as defined in Section 2.05).
"RESPONSIBLE OFFICER" means, when used with respect to the corporate
trust department of the Trustee, any senior trust officer, any vice president,
any trust officer, or any other officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this Indenture.
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"SECURITIES" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR INDEBTEDNESS" means the Principal of and interest on all Debt
of the company whether created, incurred or assumed before, on or after the date
of the issuance of the Securities; provided that Senior Indebtedness shall not
include (i) Debt of the Company to any Affiliate (other than Debt under the Bank
Credit Agreement and the Credit Facility), (ii) Debt that, when incurred and
without respect to any election under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx
Code, was without recourse to the Company and (iii) any other Debt of the
Company which by the terms of the instrument creating or evidencing the same are
specifically designated as not being senior in right of payment to the
Securities.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association or other business entity of which a majority of the capital stock or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by such Person.
"TRUSTEE" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article 7 and thereafter means such successor.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as amended
(15 U.S. Code xx.xx. 77aaa-77bbbb), as it may be amended from time to time.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, and shall 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
specific 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.
"YIELD TO MATURITY" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series are
issuable from time to time, on a Security of such series, calculated at the time
of issuance of such series in the case of clause (i) or at the time of issuance
of such Security of such series in the case of clause (ii), or, if applicable,
at the most recent redetermination of interest on such series or on such
Security, and calculated in accordance with the constant interest method or such
other accepted financial practice as is specified in the terms of such Security.
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SECTION 1.02. Other Definitions. Each of the following terms is
defined in the section set forth opposite such term:
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TERM SECTION
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Authenticating Agent 2.02
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Cash Transaction 7.03
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Dollars 4.02
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Event of Default 6.01
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Judgment Currency 10.15
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Mandatory Sinking Fund Payment 3.05
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Optional Sinking Fund Payment 3.05
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Paying Agent 2.05
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Payment Blockage Period 11.02
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Record Date 2.04
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Registrar 2.05
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Required Currency 10.15
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Security Register 2.05
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Self-liquidating Paper 7.03
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Sinking Fund Payment Date 3.05
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Tranche 2.14
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the Trust Indenture Act, the provision is
incorporated by reference in and made a part of this Indenture. The following
terms used in this Indenture that are defined by the Trust Indenture Act have
the following meanings:
"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means a Holder or a Securityholder;
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"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "institutional trustee" means the Trustee; and
"OBLIGOR" on the indenture securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
have the meanings assigned to them therein.
SECTION 1.04. Rules of Construction. Unless the context otherwise requires:
(a) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(b) words in the singular include the plural, and words in the plural
include the singular;
(c) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision;
(d) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
(e) use of masculine, feminine or neuter pronouns should not be deemed
a limitation, and the use of any such pronouns should be construed to include,
where appropriate, the other pronouns.
ARTICLE II
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions and, if
applicable, 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 imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law, or
with any rules of any securities exchange or usage, all as may be determined by
the officers executing such Securities as evidenced by their execution of the
Securities.
SECTION 2.02. Execution and Authentication. Two Officers shall execute the
Securities for the Company by facsimile or manual signature in the name and on
behalf of the Company. The seal of the Company, if any, shall be reproduced on
the Securities. If an Officer
12
whose signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "AUTHENTICATING AGENT") to authenticate Securities.
The Authenticating Agent may authenticate Securities whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such Authenticating Agent.
A Security shall not be valid until the Trustee or Authenticating Agent
manually signs the certificate of authentication on the Security. The signature
shall be conclusive evidence that the Security has been authenticated under this
Indenture.
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 the applicable documents
referred to below in this Section, and the Trustee shall thereupon authenticate
and deliver such Securities to or upon the written order of the Company. In
authenticating any Securities of a series, the Trustee shall be entitled to
receive prior to the first authentication of any Securities of such series, and
(subject to Article 7) shall be fully protected in relying upon, unless and
until such documents have been superseded or revoked:
(i) any Board Resolution and, if applicable, executed
supplemental indenture referred to in Sections 2.01 and 2.03 by or
pursuant to which the forms and terms of the Securities of that series
were established;
(ii) an Officers' Certificate setting forth the form or forms
and terms of the Securities, stating that the form or forms and terms
of the Securities of such series have been, or will be when established
in accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture; and
(iii) an Opinion of Counsel substantially to the effect that
the form or forms and terms of the Securities of such series have been,
or will be when established in accordance with such procedures as shall
be referred to therein, established in compliance with this Indenture
and that the supplemental indenture, to the extent applicable, and
Securities have been duly authorized and, if executed and authenticated
in accordance with the provisions of the Indenture and delivered to and
duly paid for by the purchasers thereof on the date of such opinion,
would be entitled to the benefits of the Indenture and would be valid
and binding obligations of the Company, enforceable against the Company
in accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, receivership, moratorium and other similar
laws affecting creditors' rights generally, general principles of
equity, and such other matters as shall be specified therein and that
all laws and requirements in respect of the execution and delivery by
the Company of the Securities of such series have been complied with.
Unless the Company shall establish pursuant to Section 2.03 that the
Securities of a series or a portion thereof are not to be issued in the form of
one or more Registered
13
Global Securities, the Company shall execute and the Trustee shall authenticate
and deliver one or more Registered Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series issued in such form and not yet canceled,
(ii) shall be registered in the name of the Depositary for such Registered
Global Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or its custodian or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary."
The Trustee shall have the right to decline to authenticate and deliver
any Security under this Section if the Trustee, being advised by counsel,
determines that such action may not be lawfully taken or if the Trustee in good
faith shall determine that such action would expose the Trustee to liability to
existing Holders.
SECTION 2.03. 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 and each such series
shall be subordinated to the Senior Indebtedness pursuant to the provisions of
Article II. There shall be established in or pursuant to Board Resolution or one
or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series, subject to the last sentence of this Section 2.03,
(i) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(ii) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
and any limitation on the ability of the Company to increase such aggregate
principal amount after the initial issuance of the Securities of that
series (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, or upon redemption of,
other Securities of the series pursuant hereto);
(iii) the date or dates on which the principal of the Securities of
the series is payable (which date or dates may be fixed or extendible);
(iv) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, on which such interest shall
be payable and on which a record shall be taken for the determination of
Holders to whom interest is payable and/or the method by which such rate or
rates or date or dates shall be determined;
(v) if other than as provided in Section 4.02, the place or places
where the principal of and any interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
exchange, notices, demands to or upon the
14
Company in respect of the Securities of the series and this Indenture
may be served and notice to Holders may be published;
(vi) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund
or otherwise;
(vii) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period or periods within which and
any of the terms and conditions upon which Securities of the series shall
be redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(viii) the terms, if any, upon which the Securities of the series may
be convertible into or exchanged for the Company's or any other issuer's
common stock, preferred stock, other debt securities or warrants for common
stock, preferred stock, indebtedness or other securities of any kind and
the terms and conditions upon which such conversion or exchange shall be
effected, including the initial conversion or exchange price or rate, the
conversion or exchange period and any other additional provisions;
(ix) the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Securities of the series of any properties,
assets, moneys, proceeds, securities or other collateral, including whether
certain provisions of the Trust Indenture Act of 1939, as amended, are
applicable and any corresponding changes to provisions of this Indenture as
then in effect;
(x) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(xi) 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;
(xii) if other than the coin or currency in which the Securities of
the series are denominated, the coin or currency in which payment of the
principal of or interest on the Securities of the series shall be payable
or if the amount of payments of principal of and/or interest on the
Securities of the series may be determined with reference to an index based
on a coin or currency other than that in which the Securities of the series
are denominated, the manner in which such amounts shall be determined;
(xiii) if other than the currency of the United States of America, the
currency or currencies in which payment of the Principal of and interest on
the Securities of the series shall be payable, and the manner in which any
such currencies shall be valued against other currencies in which any other
Securities shall be payable;
15
(xiv) whether the Securities of the series or any portion thereof will
not be issuable as Registered Global Securities and, if not, whether such
Securities will be issuable as Registered Securities;
(xv) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a person who is
not a U.S. person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Company will have the option
to redeem such Securities rather than pay such additional amounts;
(xvi) if the Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(xvii) any authenticating or paying agents, transfer agents or the
registrar or any other agents with respect to the Securities of the series
;
(xviii) provisions, if any, for the defeasance of the Securities of
the series (including provisions permitting defeasance of less than all
Securities of the series), which provisions may be in addition to, in
substitution for, or in modification of (or any combination of the
foregoing) the provisions of Article 8;
(xix) if the Securities of the series are issuable in whole or in part
as one or more Registered Global Securities, the identity of the Depositary
for such Registered Global Security or Securities, if different from DTC;
(xx) any other events of default or covenants with respect to the
Securities of the series; and
(xxi) any other terms of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical,
except as to date and denomination, except in the case of any Periodic Offering
and except as may otherwise be provided by or pursuant to the Board Resolution
referred to above or as set forth in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution or in any such indenture
supplemental hereto and any forms and terms of Securities to be issued from time
to time may be completed and established from time to time prior to the issuance
thereof by procedures described in such Board Resolution or supplemental
indenture.
SECTION 2.04. Denomination and Date of Securities; Payments of Interest. The
Securities of each series shall
16
be issuable as Registered Securities in denominations established as
contemplated by Section 2.03 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple
thereof. The Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the Officers of
the Company executing the same may determine, as evidenced by their execution
thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest and shall be payable on the dates, established as contemplated by
Section 2.03.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date for such series, in which case the
provisions of Section 2.13 shall apply. The term "RECORD DATE" as used with
respect to any interest payment date (except a date for payment of defaulted
interest) for the Securities of any series shall mean the date specified as such
in the terms of the Registered Securities of such series established as
contemplated by Section 2.03, or, if no such date is so established, the
fifteenth day next preceding such interest payment date, whether or not such
record date is a Business Day.
SECTION 2.05. Registrar and Paying Agent; Agents Generally. The Company shall
maintain an office or agency where Securities may be presented for registration,
registration of transfer or for exchange (the "REGISTRAR") and an office or
agency where Securities may be presented for payment (the "PAYING AGENT"), which
shall be in the Borough of Manhattan, The City of New York. The Company shall
cause the Registrar to keep a register of the Registered Securities and of their
registration, transfer and exchange (the "SECURITY REGISTER"). The Company may
have one or more additional Paying Agents or transfer agents with respect to any
series.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such. The Company may remove any Agent upon written notice to such Agent and
the Trustee; provided that no such removal shall become effective until (i) the
acceptance of an appointment by a successor Agent to such Agent as evidenced by
an appropriate agency agreement entered into by the Company and such successor
Agent and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as such Agent until the appointment of a successor Agent in
accordance with clause (i) of this proviso. The Company or any affiliate of the
Company may act as Paying Agent or Registrar; provided that neither the Company
nor an affiliate of the Company shall act as Paying Agent in connection with the
defeasance of the Securities or the discharge of this Indenture under Article 8.
17
The Company initially appoints the Trustee as Registrar, Paying Agent
and Authenticating Agent. If, at any time, the Trustee is not the Registrar, the
Registrar shall make available to the Trustee ten days prior to each interest
payment date and at such other times as the Trustee may reasonably request the
names and addresses of the Holders as they appear in the Security Register.
SECTION 2.06. Paying Agent to Hold Money in Trust. Not later than 10:00 a.m. New
York City time on each due date of any Principal or interest on any Securities,
the Company shall deposit with the Paying Agent money in immediately available
funds sufficient to pay such Principal or interest. The Company shall require
each Paying Agent other than the Trustee to agree in writing that such Paying
Agent shall hold in trust for the benefit of the Holders of such Securities or
the Trustee all money held by the Paying Agent for the payment of Principal of
and interest on such Securities and shall promptly notify the Trustee of any
default by the Company in making any such payment. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed, and the Trustee may at any time during the continuance
of any payment default, upon written request to a Paying Agent, require such
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon doing so, the Paying Agent shall have no further liability
for the money so paid over to the Trustee. If the Company or any affiliate of
the Company acts as Paying Agent, it will, on or before each due date of any
Principal of or interest on any Securities, segregate and hold in a separate
trust fund for the benefit of the Holders thereof a sum of money sufficient to
pay such Principal or interest so becoming due until such sum of money shall be
paid to such Holders or otherwise disposed of as provided in this Indenture, and
will promptly notify the Trustee in writing of its action or failure to act as
required by this Section.
SECTION 2.07. Transfer and Exchange. At the option of the Holder thereof,
Registered Securities of any series (other than a Registered Global Security,
except as set forth below) may be exchanged for a Registered Security or
Registered Securities of such series and tenor having authorized denominations
and an equal aggregate principal amount, upon surrender of such Registered
Securities to be exchanged at the agency of the Company that shall be maintained
for such purpose in accordance with Section 2.05 and upon payment, if the
Company shall so require, of the charges hereinafter provided. 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 Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
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 exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
Notwithstanding any other provision of this Section 2.07, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security
18
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and deliver Registered Securities of such series
and tenor, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of such Registered Global Securities, in exchange
for such Registered Global Securities. The Company may at any time and in its
sole discretion determine that any Registered Global Securities of any series
shall no longer be maintained in global form. In such event the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and deliver, Registered Securities of such series
and tenor in any authorized denominations, in an aggregate principal amount
equal to the principal amount of such Registered Global Securities, in exchange
for such Registered Global Securities.
Any time the Registered Securities of any series are not in the form of
Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.02 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
The Depositary for such Registered Global Security may surrender such
Registered Global Security in exchange in whole or in part for Registered
Securities of the same series and tenor in definitive registered form on such
terms as are acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall authenticate and deliver, without
service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities
19
authenticated and delivered pursuant to clause (i) above. Registered
Securities issued in exchange for a Registered Global Security pursuant to
this Section 2.07 shall be registered in such names and in such authorized
denominations as the Depositary for such Registered Global Security,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Each Holder of a Security of any series agrees to indemnify the Company
and the Trustee against any liability that may result from the transfer,
exchange or assignment of such Holder's Security in violation of any provision
of this Indenture and/or applicable United States Federal or state securities
law.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among the Depositary's
direct or indirect participants or beneficial owners of interests in any
Registered Global Security) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so
if and when expressly required by the terms of, this Indenture, and to examine
the same to determine substantial compliance as to form with the express
requirements hereof.
The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of 15
days before a selection of such Securities to be redeemed or (ii) to register
the transfer of or exchange any Security selected for redemption in whole or in
part.
20
SECTION 2.08. Replacement Securities. If a defaced or mutilated Security of any
series is surrendered to the Trustee or if a Holder claims that its Security of
any series has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security of such series and
tenor and principal amount bearing a number not contemporaneously outstanding.
If required by the Trustee or the Company, an indemnity bond must be furnished
that is sufficient in the judgment of both the Trustee and the Company to
protect the Company, the Trustee and any Agent from any loss that any of them
may suffer if a Security is replaced. The Company may charge such Holder for its
expenses and the expenses of the Trustee (including without limitation
attorneys' fees and expenses) in replacing a Security. In case any such
mutilated, defaced, lost, destroyed or wrongfully taken Security has become or
is about to become due and payable, the Company in its discretion may pay such
Security instead of issuing a new Security in replacement thereof. Every
replacement Security is an additional obligation of the Company and shall be
entitled to the benefits of this Indenture. To the extent permitted by law, the
foregoing provisions of this Section are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or wrongfully taken
Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding at any time are all
Securities that have been authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation and those described in this
Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of the
Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to be
redeemed or repurchased on that date, then on and after that date such
Securities cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the Company or one
of its affiliates holds such Security, 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, Securities owned by the Company or any affiliate of
the Company 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, only
Securities as to which a Responsible Officer of the Trustee has received written
notice to be so owned shall be so disregarded. Any Securities so owned which are
pledged by the Company, or by any affiliate of the Company, as security for
loans or other obligations, otherwise than to another such affiliate of the
Company, shall be deemed to be outstanding, if the pledgee is entitled pursuant
to the terms of its pledge agreement and is free to exercise in its or his
discretion the right to vote such securities, uncontrolled by the Company or by
any such affiliate.
SECTION 2.10. Temporary Securities. Until definitive Securities of any series
are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities of such series. Temporary Securities of any
series shall be substantially in the form of
21
definitive Securities of such series but may have insertions, substitutions,
omissions and other variations determined to be appropriate by the Officers
executing the temporary Securities, as evidenced by their execution of such
temporary Securities. If temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of any
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series and tenor upon surrender of such temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, 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 such series and
tenor and authorized denominations. Until so exchanged, the temporary Securities
of any series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 2.11. Cancellation. The Company at any time may deliver to the Trustee
for cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold. The Registrar, any transfer agent and
the Paying Agent shall forward to the Trustee any Securities surrendered to them
for transfer, exchange or payment. The Trustee shall cancel and destroy all
Securities surrendered for transfer, exchange, payment or cancellation and shall
deliver a certificate of destruction to the Company. The Company may not issue
new Securities to replace Securities it has paid in full or delivered to the
Trustee for cancellation.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and the Trustee shall use CUSIP
numbers or other identifying numbers, as the case may be, in notices of
redemption or exchange as a convenience to Holders and no representation shall
be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange. The Company
will promptly notify the Trustee of any change in the CUSIP numbers or other
identifying numbers.
SECTION 2.13. Defaulted Interest. If the Company defaults in a payment of
interest on the Securities, it shall pay, or shall deposit with the Paying Agent
money in immediately available funds sufficient to pay, the defaulted interest
plus any interest payable on the defaulted interest (as may be specified in the
terms thereof, established pursuant to Section 2.03) to the Persons who are
Holders on a subsequent special record date, which shall mean the 15th day next
preceding the date fixed by the Company for the payment of defaulted interest,
whether or not such day is a Business Day. At least 15 days before such special
record date, the Company shall mail to each Holder and to the Trustee a notice
that states the special record date, the payment date and the amount of
defaulted interest to be paid.
SECTION 2.14. Series May Include Tranches. A series of Securities may include
one or more tranches (each a "TRANCHE") of Securities, including Securities
issued in a Periodic Offering. The Securities of different tranches may have one
or more different terms, including authentication dates and public offering
prices, but all the Securities within each such tranche
22
shall have identical terms, including authentication date and public offering
price. Notwithstanding any other provision of this Indenture, with respect to
Sections 2.02 (other than the fourth paragraph thereof) through 2.04, 2.07,
2.08, 2.10, 3.01 through 3.05, 4.02, 6.01 through 6.14, 8.01 through 8.08 and
9.02, if any series of Securities includes more than one tranche, all provisions
of such sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series unless otherwise provided with respect to
such series or tranche pursuant to Section 2.03. In particular, and without
limiting the scope of the next preceding sentence, any of the provisions of such
sections which provide for or permit action to be taken with respect to a series
of Securities shall also be deemed to provide for and permit such action to be
taken instead only with respect to Securities of one or more tranches within
that series (and such provisions shall be deemed satisfied thereby), even if no
comparable action is taken with respect to Securities in the remaining tranches
of that series.
ARTICLE III
REDEMPTION
SECTION 3.01. Applicability of Article. The provisions of this Article shall be
applicable to the Securities of any series which are redeemable before their
maturity or to any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 2.03 for Securities of
such series.
SECTION 3.02. Notice of Redemption; Partial Redemptions. Notice of redemption to
the Holders of Registered Securities of any series to be redeemed as a whole or
in part at the option of the Company shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Registered Securities of such series at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Failure to give notice by mail to the Holder of
any Security of a series designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other
Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP numbers of the Securities to be redeemed, the date fixed for
redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security
23
or Securities of such series and tenor in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option 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.
On or before 10:00 a.m. New York City time on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.06) an amount of money sufficient to redeem on
the redemption date all the Securities of such series so called for redemption
at the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If all of the outstanding Securities of a series are to be
redeemed, the Company will deliver to the Trustee at least 10 days prior to the
last date on which notice of redemption may be given to Holders pursuant to the
first paragraph of this Section 3.02 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating that all such
Securities are to be redeemed. If less than all the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 15
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.02 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
the aggregate principal amount of such Securities to be redeemed. In case of a
redemption at the election of the Company prior to the expiration of any
restriction on such redemption, the Company shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officers' Certificate stating that such redemption is not prohibited by such
restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
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 Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 3.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after such
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to such date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit under this Indenture, and the Holders thereof
shall have no right in respect of such Securities except the right to receive
the redemption price thereof and unpaid interest to the date fixed for
redemption. On
24
presentation and surrender of such Securities at a place of payment specified in
said notice, said Securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided that payment
of interest becoming due on or prior to the date fixed for redemption shall be
payable to the Holders of such Registered Securities registered as such on the
relevant record date subject to the terms and provisions of Sections 2.04 and
2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
Upon presentation of any Security of any series redeemed in part only,
the Company shall execute and the Trustee shall authenticate and deliver to or
on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities of such series and tenor, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 3.04. Exclusion of Certain Securities from Eligibility for Selection for
Redemption. Registered Securities in definitive form shall be excluded from
eligibility for selection for redemption if they are identified by registration
and certificate number in a written statement signed by an authorized officer of
the Company and delivered to the Trustee at least 40 days prior to the last date
on which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by, either (a) the Company or
(b) an entity specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company.
SECTION 3.05. Mandatory and Optional Sinking Funds. 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 the Securities of any
series is herein referred to as an "OPTIONAL SINKING FUND PAYMENT". The date on
which a sinking fund payment is to be made is herein referred to as the "SINKING
FUND PAYMENT DATE".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except through a mandatory sinking fund payment) by the
Company or receive credit for Securities of such series (not previously so
credited) theretofore purchased or otherwise acquired (except as aforesaid) by
the Company and delivered to the Trustee for cancellation pursuant to Section
2.11, (b) receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section, or (c) receive credit for Securities of
such series (not previously so credited) redeemed by the Company through any
optional sinking fund payment. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
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On or before the sixtieth day next preceding each sinking fund payment
date for any series, or such shorter period as shall be acceptable to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none
of the specified Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Company intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which
the Company intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Company to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.11 to the Trustee with such
Officers' Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers' Certificate shall be irrevocable and upon its receipt
by the Trustee the Company shall become unconditionally obligated to make all
the cash payments or delivery of securities therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the Company, on
or before any such sixtieth day, to deliver such Officer's Certificate and
Securities specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Company (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or a lesser sum if the Company shall so request with respect to the
Securities of any series), such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such series at the
sinking fund redemption price thereof together with accrued interest thereon to
the date fixed for redemption. If such amount shall be $50,000 (or such lesser
sum) or less and the Company makes no such request then it shall be carried over
until a sum in excess of $50,000 (or such lesser sum) is available. The Trustee
shall select, in the manner provided in Section 3.02, for redemption on such
sinking fund payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be. Securities shall be excluded
from eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered to the
Trustee at least 60 days prior to the sinking fund payment date as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Company or (b) an entity specifically identified in such Officers' Certificate
as directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company. The Trustee, in the name and at the
expense of the Company (or the Company, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to be
given in substantially the manner provided in Section 3.02 (and with the effect
provided in Section 3.03) for the redemption of Securities of such series in
part at the option of the Company. The amount of any sinking fund payments not
so applied or allocated to the
26
redemption of Securities of such series shall be added to the next cash sinking
fund payment for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all sinking fund
moneys held on the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the Principal of, and interest on, the Securities of such series at
maturity.
On or before 10:00 a.m. New York City time on each sinking fund payment
date, the Company shall pay to the Trustee in cash or shall otherwise provide
for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a
Default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such Default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article 6 and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 6.04 or
the Default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall pay the Principal of and
interest on the Securities of any series on the dates and in the manner provided
in the Securities of such series and this Indenture. The interest on Securities
of any series (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only to the Holders thereof and at
the option of the Company may be paid by mailing checks for such interest
payable to or upon the written order of such Holders at their last addresses as
they appear on the Security Register of the Registrar.
Notwithstanding any provisions of this Indenture and the Securities of
any series to the contrary, if the Company and a Holder of any Registered
Security of any series so agree, payments of interest on, and any portion of the
Principal of, such Holder's Registered Security (other than interest payable at
maturity or on any redemption or repayment date or the final payment of
Principal on such Security) shall be made by the Paying Agent, upon receipt from
the Company of immediately available funds by 10:00 A.M., New York City time (or
such other
27
time as may be agreed to between the Company and the Paying Agent), directly to
the Holder of such Security (by Federal funds wire transfer or otherwise) if the
Holder has delivered written instructions to the Trustee 15 days prior to such
payment date requesting that such payment will be so made and designating the
bank account to which such payments shall be so made and in the case of payments
of Principal, surrenders the same to the Trustee in exchange for a Security or
Securities aggregating the same principal amount as the unredeemed principal
amount of the Securities of such series surrendered. The Trustee shall be
entitled to rely on the last instruction delivered by the Holder pursuant to
this Section 4.01 unless a new instruction is delivered 15 days prior to a
payment date. The Company will indemnify and hold each of the Trustee and any
Paying Agent harmless against any loss, liability or expense (including
attorneys' fees) resulting from any act or omission to act on the part of the
Company or any such Holder in connection with any such agreement or from making
any payment in accordance with any such agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities of each series.
SECTION 4.02. Maintenance of Office or Agency. The Company will maintain in the
Borough of Manhattan, The City of New York, an office or agency where Securities
may be surrendered for registration of transfer or exchange or for presentation
for payment and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company hereby initially
designates the Corporate Trust Office of the Trustee, located in the Borough of
Manhattan, The City of New York, as such office or agency of the Company. 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 address of the Trustee set
forth in Section 10.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
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SECTION 4.03. Securityholders' Lists. The Company will furnish or cause to be
furnished to the Trustee a list in such form as the Trustee may reasonably
require of the names and addresses of the holders of the Securities pursuant to
Section 312 of the Trust Indenture Act of 1939 (a) semi-annually not more than
15 days after each record date for the payment of semi-annual interest on the
Securities, as hereinabove specified, as of such record date, and (b) at such
other times as the Trustee may request in writing, within thirty days after
receipt by the Company of any such request as of a date not more than 15 days
prior to the time such information is furnished.
SECTION 4.04. Certificate to Trustee. The Company will furnish to the Trustee on
each April 30, beginning with April 30, 2002, a brief certificate (which need
not contain the statements required by Section 10.04) from its principal
executive, financial or accounting officer as to his or her knowledge of the
compliance of the Company with all conditions and covenants under this Indenture
(such compliance to be determined without regard to any period of grace or
requirement of notice provided under this Indenture) and if the Company shall
not be in such compliance, specifying such non-compliance and the nature and
status thereof, which certificate shall comply with the requirements of the
Trust Indenture Act.
SECTION 4.05. Reports by the Company. The Company covenants to 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 which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.06. Calculation of Original Issue Discount. The Company shall file
with the Trustee promptly at the end of each calendar year (i) a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on outstanding Securities as of the end of such year
and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc.. The Company shall not consolidate
with, merge with or into, or sell, convey, transfer, lease or otherwise dispose
of all or substantially all of its property and assets (as an entirety or
substantially as an entirety in one transaction or a series of related
transactions) to, any Person (other than a consolidation with or merger with or
into a Subsidiary or a sale, conveyance, transfer, lease or other disposition to
a Subsidiary) or permit any Person to merge with or into the Company unless
either (x) the
29
Company shall be the continuing Person or (y) the Person (if other than the
Company) formed by such consolidation or into which the Company is merged or who
acquires by sale, conveyance, transfer, lease or otherwise all or substantially
all of the properties and assets of the Company shall be a corporation organized
and validly existing under the laws of the United States of America or any
jurisdiction thereof and shall expressly assume, by a supplemental indenture,
executed and delivered to the Trustee, all of the obligations of the Company on
all of the Securities and under this Indenture and the Company shall have
delivered to the Trustee (A) an Opinion of Counsel stating that such
consolidation, merger or transfer and such supplemental indenture complies with
this provision and that all conditions precedent provided for herein relating to
such transaction have been complied with and that such supplemental indenture
constitutes the legal, valid and binding obligation of the Company or such
successor enforceable against such entity in accordance with its terms, subject
to customary exceptions and (B) an Officers' Certificate to the effect that
immediately after giving effect to such transaction, no Default shall have
occurred and be continuing.
SECTION 5.02. Successor Substituted. Upon any consolidation or merger, or any
sale, conveyance, transfer, lease or other disposition of all or substantially
all of the property and assets of the Company in accordance with Section 5.01 of
this Indenture, the successor Person formed by such consolidation or into which
the Company is merged or to which such sale, conveyance, transfer, lease or
other disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. An "EVENT OF DEFAULT" shall occur with respect
to the Securities of any series if:
(a) the Company defaults in the payment of the Principal of any
Security of such series when the same becomes due and payable at maturity, upon
acceleration, redemption or mandatory repurchase, including as a sinking fund
installment, or otherwise, whether or not such payment is prohibited by Article
II of this Indenture;
(b) the Company defaults in the payment of interest on any Security of
such series when the same becomes due and payable, and such default continues
for a period of 30 days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture with respect to any
Security of such series or in the Securities of such series and such default or
breach continues for a period of 60 consecutive days after written notice to the
Company by the Trustee or to the Company and the Trustee by the Holders of 25%
or more in aggregate principal amount of the Securities of all series affected
thereby;
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or
30
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Company or for any substantial part of its property or ordering the winding
up or liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days;
(e) the Company (A) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case under any
such law, (B) consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Company or for all or substantially all of the property and assets of the
Company or (C) effects any general assignment for the benefit of creditors; or
(f) any other Event of Default established pursuant to Section 2.03
with respect to the Securities of such series occurs.
SECTION 6.02. Acceleration. (a) If an Event of Default other than as described
in clauses (d) or (e) of Section 6.01 with respect to the Securities of any
series then outstanding occurs and is continuing, then, and in each and every
such case, except for any series of Securities the principal of which shall have
already become due and payable, either the Trustee or the Holders of a majority
in aggregate principal amount of the Securities of any such affected series then
outstanding hereunder (each such series treated as a separate class) by notice
in writing to the Company (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Securities of any such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series established pursuant to Section 2.03)
of all Securities of such affected series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable.
(b) If an Event of Default described in clause (d) or (e) of Section
6.01 occurs and is continuing, then the principal amount (or, if any Securities
are Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to Section 2.03) of all the
Securities then outstanding and interest accrued thereon, if any, shall be and
become immediately due and payable, subject to the prior payment in full of all
Senior Indebtedness, without any notice or other action by any Holder or the
Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof established pursuant to Section 2.03) of the Securities of any
series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of each such series (or
of all the Securities, as the case may be) and the principal of any and all
Securities of each such series (or of all the Securities, as the case may be)
which shall have become due otherwise than by acceleration (with interest upon
such principal and, to the
31
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of each such series to the date of such payment or deposit)
and such amount as shall be sufficient to cover all amounts owing the Trustee
under Section 7.08, and if any and all Events of Default under the Indenture,
other than the non-payment of the principal of Securities which shall have
become due by acceleration, shall have been cured, waived or otherwise remedied
as provided herein, then and in every such case the Holders of a majority in
aggregate principal amount of all the then outstanding Securities of all such
series that have been accelerated (voting as a single class), by written notice
to the Company and to the Trustee, may waive all defaults with respect to all
such series (or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 6.03. Other Remedies. If a payment default or an Event of Default with
respect to the Securities of any series occurs and is continuing, the Trustee
may pursue, in its own name or as trustee of an express trust, any available
remedy by proceeding at law or in equity to collect the payment of principal of
and interest on the Securities of such series or to enforce the performance of
any provision of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
32
SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07 and 9.02,
the Holders of at least a majority in principal amount (or, if the Securities
are Original Issue Discount Securities, such portion of the principal as is then
accelerable under Section 6.02) of the outstanding Securities of all series
affected (voting as a single class), by notice to the Trustee, may waive an
existing Default or Event of Default with respect to the Securities of such
series and its consequences, except a Default in the payment of Principal of or
interest on any Security as specified in clauses (a) or (b) of Section 6.01 or
in respect of a covenant or provision of this Indenture which cannot be modified
or amended without the consent of the Holder of each outstanding Security
affected. Upon any such waiver, such Default shall cease to exist, and any Event
of Default with respect to the Securities of such series arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto.
SECTION 6.05. Control by Majority. Subject to Sections 7.01 and 7.02(v), the
Holders of at least a majority in aggregate principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the principal
as is then accelerable under Section 6.02) of the outstanding Securities of all
series affected (voting as a single class) may 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 by this Indenture; provided, that the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, that
may involve the Trustee in personal liability or that the Trustee determines in
good faith may be unduly prejudicial to the rights of Holders not joining in the
giving of such direction; and provided further, that the Trustee may take any
other action it deems proper that is not inconsistent with any directions
received from Holders of Securities pursuant to this Section 6.05.
SECTION 6.06. Limitation on Suits. No Holder of any Security of any series may
institute any proceeding, judicial or otherwise, with respect to this Indenture
or the Securities of such series, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the Securities
of such series;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected 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;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such
request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
33
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of all such
affected series have not given the Trustee a direction that is
inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder of a Security to receive
payment of Principal of or interest, if any, on such Holder's Security on or
after the respective due dates expressed on such Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default with respect to
the Securities of any series in payment of Principal or interest specified in
clause (a) or (b) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount (or such portion thereof as specified in the terms
established pursuant to Section 2.03 of Original Issue Discount Securities) of
Principal of, and accrued interest remaining unpaid on, together with interest
on overdue Principal of, and, to the extent that payment of such interest is
lawful, interest on overdue installments of interest on, the Securities of such
series, in each case at the rate or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in such Securities, and such further amount
as shall be sufficient to cover all amounts owing the Trustee under Section
7.08.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs
of claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for amounts due the
Trustee under Section 7.08) and the Holders allowed in any judicial proceedings
relative to the Company (or any other obligor on the Securities), its creditors
or its property and shall be entitled and empowered to collect and receive any
moneys, securities or other property payable or deliverable upon conversion or
exchange of the Securities or upon any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it under Section 7.08. Nothing herein
contained shall be deemed to empower the Trustee to authorize or consent to, or
accept or adopt on behalf of any Holder, any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
SECTION 6.10. Application of Proceeds. Any moneys collected by the Trustee
pursuant to this Article in respect of the Securities of any series shall,
subject to the subordination provisions hereof, be applied in the following
order at the date or dates fixed by the Trustee and, in case of the distribution
of such moneys on account of Principal or interest, upon presentation of the
several Securities in respect of which moneys have been collected and noting
thereon the payment, or issuing Securities of such series and tenor in reduced
principal
34
amounts in exchange for the presented Securities of such series and tenor if
only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 7.08
applicable to the Securities of such series in respect of which moneys have
been collected;
SECOND: In case the principal of the Securities of such series in respect of
which moneys have been collected shall not have become and be then due and
payable, to the payment of interest on the Securities of such series in
default in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such series in respect of
which moneys have been collected shall have become and shall be then due
and payable, to the payment of the whole amount then owing and unpaid upon
all the Securities of such series for Principal and interest, with interest
upon the overdue Principal, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series; and
in case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon the Securities of such series, then to the payment
of such Principal and interest or Yield to Maturity, without preference or
priority of Principal over interest or Yield to Maturity, or of interest or
Yield to Maturity over Principal, or of any installment of interest over
any other installment of interest, or of any Security of such series over
any other Security of such series, ratably to the aggregate of such
Principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Company or any other
person lawfully entitled thereto.
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SECTION 6.11. 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 to their former positions
hereunder and thereafter all rights and remedies of the Company, Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 6.12. Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, in either case in respect to the
Securities of any series, a court may require any party litigant in such suit
(other than the Trustee) to file an undertaking to pay the costs of the suit,
and the court may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant (other than the Trustee) in the suit having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.12 does not apply to a suit by a Holder pursuant to
Section 6.07 or a suit by Holders of more than 10% in principal amount of the
outstanding Securities of such series.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken Securities in Section 2.08, 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 6.14. 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 6 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.
ARTICLE VII
TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities
(a) Except during the continuance of an Event of Default,
(i) 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
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(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the trust 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 confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(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 person would exercise or use under the circumstances in the conduct of
his or her 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 willful misconduct, except that
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(ii) 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;
(iii) 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 2.09 and 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
(iv) 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.
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SECTION 7.02. Certain Rights of Trustee. Subject to the provisions of Section
7.01:
(i) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
Officers' Certificate, Opinion of Counsel (or both), 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 person or persons;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel, which
shall conform to Section 10.04. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion. Subject to Sections 7.01 and 7.02, whenever in
the administration of the trusts of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by
an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of
the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon
the faith thereof;
(iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the misconduct
or negligence of any agent or attorney appointed with due care;
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits to take
in accordance with the direction of the Holders in accordance with
Section 6.05 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;
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(vii) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(viii) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or
by agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry
or investigation;
(ix) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture;
(x) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder; and
(xi) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any person authorized to sign an Officers' Certificate, including
any person specified as so authorized in any such certificate
previously delivered and not superseded.
SECTION 7.03. Individual Rights of Trustee. The Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not the Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to Trust Indenture Act Sections 310(b) and 311.
For purposes of Trust Indenture Act Section 311(b)(4) and (6), the following
terms shall mean:
(a) "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; and
(b) "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
39
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.
SECTION 7.04. Trustee's Disclaimer. The recitals contained herein and in the
Securities (except the Trustee's certificate of authentication) shall be taken
as statements of the Company and not of the Trustee and the Trustee assumes no
responsibility for the correctness of the same. Neither the Trustee nor any of
its agents (i) makes any representation as to the validity or adequacy of this
Indenture or the Securities and (ii) shall be accountable for the Company's use
or application of the proceeds from the Securities
SECTION 7.05. Notice of Default. Within 90 days after the occurrence of any
default of which the Trustee has actual knowledge hereunder with respect to the
Securities of any series, the Trustee shall transmit first-class by mail,
postage prepaid, 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 installment 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 determines 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(b) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
SECTION 7.06. Reports by Trustee to Holders
(i) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the
Trust Indenture Act, the Trustee shall, within sixty days after each
May 15, beginning with May 15, 2002, deliver to Holders a brief report,
dated as of such May 15, which complies with the provisions of such
Section 313(a).
(ii) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify the
Trustee when the Securities are listed on any stock exchange and of any
delisting thereof.
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SECTION 7.07. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent 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 or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 7.08. Compensation and Indemnity. The Company shall pay to the Trustee
such compensation as shall be agreed upon in writing from time to time for its
services. The compensation of the Trustee shall not be limited by any law on
compensation of a Trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses, disbursements
and advances incurred or made by the Trustee, except any such expenses as may be
attributable to its negligence or bad faith. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents, counsel and other
persons not regularly in its employ.
The Company shall indemnify each of the Trustee and its agents or any
predecessor Trustee and their agents for, and hold them harmless against, any
loss, damage, claims or liability or expense including taxes (other than taxes
based upon, measured by or determined by the income of the Trustee) incurred by
them without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of this Indenture and the
Securities or the issuance of the Securities or of series thereof or the trusts
hereunder and the performance of duties under this Indenture and the Securities,
including the costs and expenses of defending itself against or investigating
any claim (whether asserted by the Company, or any Holder or any other Person)
or liability and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its powers or
duties under this Indenture and the Securities.
To secure the Company's payment obligations in this Section 7.08, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture or the rejection or termination of
this Indenture under bankruptcy law. Such additional indebtedness shall be a
senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities, and the Securities are hereby subordinated
to such senior claim. If the Trustee renders services and incurs expenses
following an Event of Default under Section 6.01(d) or Section 6.01(e) hereof,
the parties hereto and the holders by their acceptance of the Securities hereby
agree that such expenses are intended to constitute expenses of administration
under any bankruptcy law.
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The provisions of this Section 7.08 shall survive the termination or
satisfaction of this Indenture.
SECTION 7.09. Replacement of Trustee. A resignation or removal of the Trustee as
Trustee with respect to the Securities of any series and appointment of a
successor Trustee as Trustee with respect to the Securities of any series shall
become effective only upon the successor Trustee's acceptance of appointment as
provided in this Section 7.09.
The Trustee may resign as Trustee with respect to the Securities of any
series at any time by so notifying the Company in writing. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. To the extent permitted by the Trust Indenture
Act, the Trustee shall not be deemed to have a conflicting interest by virtue of
being a trustee under this Indenture with respect to Securities of more than one
series. The Holders of a majority in principal amount of the outstanding
Securities of any series may remove the Trustee as Trustee with respect to the
Securities of such series by so notifying the Trustee in writing and may appoint
a successor Trustee with respect thereto with the consent of the Company. The
Company may remove the Trustee as Trustee with respect to the Securities of any
series if: (i) the Trustee is no longer eligible under Section 7.11 of this
Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property;
(iv) the Trustee becomes incapable of acting; or (v) the Trustee shall fail to
either eliminate a conflict or resign after written request by the Company to do
so.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the outstanding Securities of such series may appoint a successor
Trustee in respect of such Securities to replace the successor Trustee appointed
by the Company. In the case of either resignation or removal of the Trustee, if
the successor Trustee with respect to the Securities of any series does not
deliver its written acceptance required by the next succeeding paragraph of this
Section 7.09 within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of a majority in principal
amount of the outstanding Securities of such series may at the expense of the
Company petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any series shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company. Immediately after the delivery of such written acceptance, subject
to the lien provided for in Section 7.08, (i) the retiring Trustee shall
transfer all property held by it as Trustee in respect of the Securities of such
series to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee in respect of the Securities of such series shall become effective and
(iii) the successor Trustee shall have all the rights, powers and duties of the
Trustee in respect of the Securities of such series under this Indenture. A
successor Trustee shall mail notice of its succession to each Holder of
Securities of such series.
42
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 such rights, powers and trusts referred to in the
preceding paragraph.
The Company shall give notice of any resignation and any removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee in respect of the Securities of such series to all Holders of
Securities of such series. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.08, the Company's
obligations under Section 7.08 shall continue for the benefit of the retiring
Trustee.
SECTION 7.10. Successor Trustee by Merger, Etc.. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation or banking association, the
resulting, surviving or transferee corporation or banking association without
any further act shall be the successor Trustee with the same effect as if the
successor Trustee had been named as the Trustee herein.
SECTION 7.11. Eligibility. This Indenture shall always have a Trustee who
satisfies the requirements of Trust Indenture Act Section 310(a). The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition.
SECTION 7.12. Money Held in Trust. The Trustee shall not be liable for interest
on any money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law and except for money held in trust
under Article 8 of this Indenture.
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 8.01. Satisfaction and Discharge of Indenture. If at any time (a) the
Company shall have paid or caused to be paid the principal of and interest on
all the Securities of any series outstanding hereunder (other than Securities of
such series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.08) as and when the same shall have
become due and payable, or (b) the Company shall have delivered to the Trustee
for cancellation all Securities of any series theretofore authenticated (other
than any Securities of such series which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.08)
or (c) (i) all the Securities of such series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (ii) the Company shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Trustee or any paying agent to
the Company in accordance with Section 8.04) or U.S. Government Obligations,
maturing as to
43
principal and interest in such amounts and at such times as will ensure the
availability of cash sufficient to pay at maturity or upon redemption all
Securities of such series (other than any Securities of such series which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.08) not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due on or prior
to such date of maturity as the case may be, and if, in any such case, the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company with respect to Securities of such series, then this Indenture shall
cease to be of further effect with respect to Securities of such series (except
as to (i) rights of registration of transfer and exchange of Securities of such
series, and the Company's right of optional redemption, if any, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii)
rights of holders to receive payments of principal thereof and interest thereon,
upon the original stated due dates therefor (but not upon acceleration) and
remaining rights of the holders to receive mandatory sinking fund payments, if
any, (iv) the rights, obligations and immunities of the Trustee hereunder and
(v) the rights of the Securityholders of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or any
of them), and the Trustee, on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Company, shall execute proper instruments acknowledging such satisfaction of and
discharging this Indenture with respect to such series; provided, that the
rights of Holders of the Securities to receive amounts in respect of principal
of and interest on the Securities held by them shall not be delayed longer than
required by then-applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. The Company agrees to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this Indenture or the
Securities of such series.
SECTION 8.02. Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 8.04 and to the subordination provisions of
Article II hereof, all moneys deposited with the Trustee pursuant to Section
8.01 shall be held in trust and applied by it to the payment, either directly or
through any paying agent (including the Company acting as its own paying agent),
to the Holders of the particular Securities of such series for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 8.03. Repayment of Moneys Held by Paying Agent. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any
series, all moneys then held by any paying agent under the provisions of this
Indenture with respect to such series of Securities shall, upon demand of the
Company, be repaid to it or paid to the Trustee and thereupon such paying agent
shall be released from all further liability with respect to such moneys.
SECTION 8.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for
Two Years. Any moneys deposited with or paid to the Trustee or any paying agent
for the payment of the principal of or interest on any Security of any series
and not applied but remaining unclaimed for two years after the date upon which
such principal or interest shall have
44
become due and payable, shall, upon the written request of the Company and
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Company by the Trustee for
such series or such paying agent, and the Holder of the Security of such series
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company for
any payment which such Holder may be entitled to collect, and all liability of
the Trustee or any paying agent with respect to such moneys shall thereupon
cease.
SECTION 8.05. Defeasance and Discharge of Indenture. The Company shall be deemed
to have paid and shall be discharged from any and all obligations in respect of
the Securities of any series, on the 123rd day after the deposit referred to in
clause (i) hereof has been made, and the provisions of this Indenture shall no
longer be in effect with respect to the Securities of such series (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except as to: (a) rights of registration of transfer
and exchange, and the Company's right of optional redemption, (b) substitution
of apparently mutilated, defaced, destroyed, lost or stolen Securities, (c)
rights of holders to receive payments of principal thereof and interest thereon,
upon the original stated due dates therefor (but not upon acceleration), (d) the
rights, obligations and immunities of the Trustee hereunder and (e) the rights
of the Securityholders of such series as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them;
provided that the following conditions shall have been satisfied:
(i) with reference to this provision the Company has deposited
or caused to be irrevocably deposited with the Trustee (or another
trustee satisfying the requirements of Sections 7.09 and 7.11) as trust
funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such series,
(i) money in an amount, or (ii) U.S. Government Obligations which
through the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one day before
the due date of any payment referred to in subclause (x) or (y) of this
clause (A) money in an amount, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge without
consideration of the reinvestment of such interest and after payment of
all federal, state and local taxes or other charges and assessments in
respect thereof payable by the Trustee (x) the principal of, premium,
if any, and each installment of interest on the outstanding Securities
of such series on the due dates thereof and (y) any mandatory sinking
fund payments or analogous payments applicable to the Securities of
such series on the day on which such payments are due and payable in
accordance with the terms of Securities of such series and the
Indenture with respect to the Securities of such series;
(ii) the Company has delivered to the Trustee (i) either (x)
an Opinion of Counsel to the effect that Holders of Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of its option under this
Section 8.05 and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred,
which Opinion of Counsel must
45
be based upon a ruling of the Internal Revenue Service to the same
effect or a change in applicable federal income tax law or related
treasury regulations after the date of this Indenture or (y) a ruling
directed to the Trustee received from the Internal Revenue Service to
the same effect as the aforementioned Opinion of Counsel and (ii) an
Opinion of Counsel to the effect that the creation of the defeasance
trust does not violate the Investment Company Act of 1940 and after
the passage of 123 days following the deposit, the trust fund will not
be subject to the effect of Section 547 of the U.S. Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law;
(iii) immediately after giving effect to such deposit on a pro
forma basis, no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default, shall
have occurred and be continuing on the date of such deposit or during
the period ending on the 123rd day after the date of such deposit, and
such deposit shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which
the Company is a party or by which the Company is bound;
(iv) the Company is not prohibited from making payments
in respect of the Securities by Article II hereof; and
(v) if at such time the Securities of such series are listed
on a national securities exchange, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Securities of such
series will not be delisted as a result of such deposit, defeasance and
discharge.
SECTION 8.06. Defeasance of Certain Obligations. The Company may omit to comply
with any term, provision or condition set forth in, and this Indenture will no
longer be in effect with respect to, any covenant in Article 4 or Section 5.01
established pursuant to Section 2.03 in any indenture supplemental hereto and
clause (c) (with respect to any covenants in Article 4 or Section 5.01
established pursuant to Section 2.03 in any indenture supplemental hereto) and
clause (f) of Section 6.01 shall be deemed not to be an Event of Default, and
the provisions of Article 11 shall not apply with respect to the Securities of
any series, if
(i) with reference to this Section 8.06, the Company has
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Sections 7.09 and 7.11)
as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
such series and the Indenture with respect to the Securities of such
series, (i) money in an amount or (ii) U.S. Government Obligations
which through the payment of interest and principal in respect thereof
in accordance with their terms will provide not later than one day
before the due dates thereof or earlier redemption (irrevocably
provided for under agreements satisfactory to the Trustee), as the case
may be, of any payment referred to in subclause (x) or (y) of this
clause (A) money in an amount, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge without
consideration of the reinvestment of such interest and after
46
payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee (x) the principal
of, premium, if any, and each installment of interest on the
outstanding Securities on the due date thereof or earlier redemption
(irrevocably provided for under arrangements satisfactory to the
Trustee), as the case may be, and (y) any mandatory sinking fund
payments or analogous payments applicable to the Securities of such
series and the Indenture with respect to the Securities of such series
on the day on which such payments are due and payable in accordance
with the terms of the Indenture and of Securities of such series and
the Indenture with respect to the Securities of such series;
(ii) the Company has delivered to the Trustee (i) an Opinion
of Counsel to the effect that Holders of Securities of such series will
not recognize income, gain or loss for federal income tax purposes as a
result of the Company's exercise of its option under this Section 8.06
and will be subject to federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred and (ii) an Opinion of Counsel
to the effect that the creation of the defeasance trust does not
violate the Investment Company Act of 1940 and after the passage of 123
days following the deposit, the trust fund will not be subject to the
effect of Section 547 of the U.S. Bankruptcy Code or Section 15 of the
New York Debtor and Creditor Law;
(iii) immediately after giving effect to such deposit on a pro
forma basis, no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default, shall
have occurred and be continuing on the date of such deposit or during
the period ending on the 123rd day after the date of such deposit, and
such deposit shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which
the Company is a party or by which the Company is bound;
(iv) the Company is not prohibited from making payments in
respect of the Securities by Article 11 hereof; and
(v) if at such time the Securities of such series are listed
on a national securities exchange, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Securities of such
series will not be delisted as a result of such deposit, defeasance and
discharge.
SECTION 8.07. Indemnity for U.S. Government Obligations. The Company shall pay
and indemnify the Trustee against any tax, free or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Sections
8.01, 8.05 or 8.06 or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of
the Holders of Outstanding Securities.
SECTION 8.08. Reinstatement. If the Trustee or paying agent is unable to apply
any monies or U.S. Government Obligations in accordance with Article 8 by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority
47
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article until such
time as the Trustee or paying agent is permitted to apply all such monies or
U.S. Government Obligations in accordance with Article 8; provided, however,
that if the Company has made any payment of principal of or interest on any
Securities because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the monies or U.S. Government Obligations held by the Trustee or
paying agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company and the Trustee
may amend or supplement this Indenture or the Securities of any series
without notice to or the consent of any Holder:
(i) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(ii) to comply with Article 5;
(iii) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(iv) to evidence and provide for the acceptance of
appointment hereunder with respect to the Securities of any or all
series by a successor Trustee;
(v) to establish the form or forms or terms of Securities
of any series as permitted by Section 2.03;
(vi) to provide for uncertificated or Unregistered
Securities and to make all appropriate changes for such purpose; and
(vii) to make any change that does not materially and
adversely affect the rights of any Holder.
48
SECTION 9.02. With Consent of Holders. Subject to Sections 6.04 and 6.07,
without prior notice to any Holders, the Company and the Trustee may amend this
Indenture and the Securities of any series with the written consent of the
Holders of a majority in principal amount of the outstanding Securities of all
series affected by such amendment (all such series voting as a separate class),
and the Holders of a majority in principal amount of the outstanding Securities
of all series affected thereby (all such series voting as a separate class) by
written notice to the Trustee may waive future compliance by the Company with
any provision of this Indenture or the Securities of such series.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.04, may not:
(i) change the stated maturity of the Principal of, or
any sinking fund obligation or any installment of interest
on, such Holder's Security;
(ii) reduce the Principal amount thereof or the rate of
interest thereon (including any amount in respect of
original issue discount);
(iii) if applicable, reduce any amount payable upon
redemption of Securities of the relevant series;
(iv) if applicable, change the Company's obligation to
redeem Securities of the relevant series upon a fundamental
change as defined in the relevant indenture supplemental
hereto;
(v) impair the right of such Holder to institute suit
for payment on such Holder's Security when due;
(vi) change the currency in which payment of the
Principal of and interest on the Securities of the relevant
series shall be payable;
(vii) if applicable, impair any right of a Holder to
convert or exchange Securities of the relevant series;
(viii) modify the subordination provisions of this
Indenture with respect to the Securities of the relevant
series so that the rights of Holders of Securities of such
series are adversely affected;
(ix) reduce the above stated percentage of outstanding
Securities the consent of whose Holders is necessary to
modify or amend the Indenture with respect to the Securities
of the relevant series; and
(x) reduce the percentage in principal amount of
outstanding Securities of the relevant series the consent of
whose Holders is required for any supplemental indenture,
for any waiver of compliance with certain provisions of this
Indenture or certain Defaults and their consequences
provided for in this Indenture.
49
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 Holders of Securities of such series with respect to such covenant
or 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 the consent of any Holder under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. Revocation and Effect of Consent. Until an amendment or waiver
becomes effective, a consent to it by a Holder is a continuing consent by the
Holder and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the Security of the consenting Holder, even if
notation of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to its Security or portion of its
Security. Such revocation shall be effective only if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective with
respect to any Securities affected thereby on receipt by the Trustee of written
consents from the requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date
(which may be not less than five nor more than 60 days prior to the solicitation
of consents) for the purpose of determining the Holders of the Securities of any
series affected entitled to consent to any amendment, supplement or waiver. If a
record date is fixed, then, notwithstanding the immediately preceding paragraph,
those Persons who were such Holders at such record date (or their duly
designated proxies) and only those Persons shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be such Holders after such record date.
No such consent shall be valid or effective for more than 90 days after such
record date.
After an amendment, supplement or waiver becomes effective with respect
to the Securities of any series affected thereby, it shall bind every Holder of
such Securities unless it is of the type described in any of clauses (i) through
(x) of Section 9.02. In case of an amendment or waiver of the type described in
clauses (i) through (x) of Section 9.02, the amendment or waiver shall bind each
such Holder who has consented to it and every subsequent Holder of a Security
that evidences the same indebtedness as the Security of the consenting Holder.
SECTION 9.04. Notation on or Exchange of Securities. If an amendment, supplement
or waiver changes the terms of any Security, the Trustee may require the Holder
50
thereof to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security about the changed terms and return it to the Holder and
the Trustee may place an appropriate notation on any Security of such series
thereafter authenticated. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security of the same series and tenor that reflects the
changed terms.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of any amendment, supplement or waiver authorized
pursuant to this Article 9 is authorized or permitted by this Indenture, stating
that all requisite consents have been obtained or that no consents are required
and stating that such supplemental indenture constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject to customary exceptions. Subject to the preceding
sentence, the Trustee shall sign such amendment, supplement or waiver if the
same does not adversely affect the rights of the Trustee. The Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver that
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.06. Conformity with Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article 9 shall conform to the requirements of the
Trust Indenture Act as then in effect.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act of 1939. This Indenture shall incorporate and
be governed by the provisions of the Trust Indenture Act that are required to be
part of and to govern indentures qualified under the Trust Indenture Act.
SECTION 10.02. Notices. Any notice or communication shall be sufficiently given
if written and (a) if delivered in person when received or (b) if mailed by
first class mail 5 days after mailing, or (c) as between the Company and the
Trustee if sent by facsimile transmission, when transmission is confirmed, in
each case addressed as follows:
if to the Company:
Choice One Communications Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telecopy: [( ) ]
Attention: General Counsel
IF TO THE TRUSTEE
The Bank of New York
51
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Telecopy: [(000) 000-0000]
Attention: [Xxxxxxx Xxxx]
The Company or the Trustee by written notice to the other may designate
additional or different addresses for subsequent notices or communications.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided in this Section 10.02, it is duly given, whether or not the
addressee receives it.
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 it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 10.03. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 10.04. Statement Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture shall include:
(i) a statement that each person signing such certificate or opinion has
read such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in such
certificate or opinion is based;
52
(iii)a statement that, in the opinion of each such person, 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
(iv) a statement as to whether or not, in the opinion of each such person,
such condition or covenant has been complied with; provided, however,
that, with respect to matters of fact, an Opinion of Counsel may rely
on an Officers' Certificate or certificates of public officials.
53
SECTION 10.05. Evidence of Ownership. The Company, the Trustee and any agent of
the Company or the Trustee may deem and treat the person in whose name any
Registered Security shall be registered upon the Security Register for such
series as the absolute owner of such Registered Security (whether or not such
Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the Principal of and, subject to the provisions of this Indenture,
interest on such Registered Security and for all other purposes; and neither the
Company nor the Trustee nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary.
SECTION 10.06. Rules by Trustee, Paying Agent or Registrar. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Paying Agent or
Registrar may make reasonable rules for its functions.
SECTION 10.07. Payment Date Other than a Business Day. If any date for payment
of Principal or interest on any Security shall not be a Business Day at any
place of payment, then payment of Principal of or interest on such Security, as
the case may be, need not be made on such date, but may be made on the next
succeeding Business Day at any place of payment with the same force and effect
as if made on such date and no interest shall accrue in respect of such payment
for the period from and after such date.
SECTION 10.08. Governing Law. The laws of the State of New York
(without giving effect to the principles of conflicts of laws thereof) shall
govern this Indenture and the Securities.
SECTION 10.09. No Adverse Interpretation of Other Agreements. This Indenture may
not be used to interpret another indenture or loan or debt agreement of the
Company or any Subsidiary of the Company. Any such indenture or agreement may
not be used to interpret this Indenture.
SECTION 10.10. Successors. All agreements of the Company in this Indenture
and the Securities shall bind its successors. All agreements of the Trustee in
this Indenture shall bind its successors.
SECTION 10.11. Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 10.12. Separability. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 10.13. Table of Contents, Headings, Etc.. The Table of Contents and
headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and shall
in no way modify or restrict any of the terms and provisions hereof.
54
SECTION 10.14. Incorporators, Stockholders, Officers and Directors of Company
Exempt from Individual Liability. No recourse under or upon any obligation,
covenant or agreement contained in this Indenture or any indenture supplemental
hereto, or in any Security, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such or against any past, present or
future stockholder, officer, director or employee, as such, of the Company or of
any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 10.15. Judgment Currency. The Company agrees, to the fullest extent that
it may effectively do so under applicable law, that (a) if for the purpose of
obtaining judgment in any court it is necessary to convert the sum due in
respect of the Principal of or interest on the Securities of any series (the
"REQUIRED CURRENCY") into a currency in which a judgment will be rendered (the
"JUDGMENT CURRENCY"), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the day on which
final unappealable judgment is entered, unless such day is not a Business Day,
then, to the extent permitted by applicable law, the rate of exchange used shall
be the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the Business Day preceding the day on which final unappealable
judgment is entered and (b) its obligations under this Indenture to make
payments in the Required Currency (i) shall not be discharged or satisfied by
any tender, or any recovery pursuant to any judgment (whether or not entered in
accordance with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture.
ARTICLE XI
SUBORDINATION OF SECURITIES
SECTION 11.01. Agreement to Subordinate. The Company covenants and agrees, and
each Holder of Securities issued hereunder by his acceptance thereof likewise
covenants and agrees, that all Securities shall be issued subject to the
provisions of this Article; and each person holding any Security, whether upon
original issue or upon transfer, assignment or exchange thereof accepts and
agrees that the Principal of and interest on all Securities issued hereunder
shall, to the extent and in the manner herein set forth, be subordinated and
subject in right to the prior payment in full of all Senior Indebtedness.
55
SECTION 11.02. Payments to Securityholders. No payments on account of Principal
of or interest on the Securities shall be made if at the time of such payment or
immediately after giving effect thereto there shall exist a default in any
payment with respect to any Senior Indebtedness, and such event of default shall
not have been cured or waived or shall not have ceased to exist. In addition,
during the continuance of any other event of default (other than a payment
default) with respect to Designated Senior Indebtedness pursuant to which the
maturity thereof may be accelerated, from and after the date of receipt by the
Trustee of written notice from the holders of such Designated Senior
Indebtedness or from an agent of such holders, no payments on account of
Principal of or interest in respect of the Securities may be made by the Company
for a period ("Payment Blockage Period") commencing on the date of delivery of
such notice and ending 179 days thereafter (unless such Payment Blockage Period
shall be terminated by written notice to the Trustee from the holders of such
Designated Senior Indebtedness or from an agent of such holders, or such event
of default has been cured or waived or has ceased to exist). Only one Payment
Blockage Period may be commenced with respect to the Securities during any
period of 365 consecutive days. No event of default which existed or was
continuing on the date of the commencement of any Payment Blockage Period with
respect to the Designated Senior Indebtedness initiating such Payment Blockage
Period shall be or be made the basis for the commencement of any subsequent
Payment Blockage Period by the holders of such Designated Senior Indebtedness,
unless such event of default shall have been cured or waived for a period of not
less than 90 consecutive days.
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
liquidation, dissolution, winding up, receivership, reorganization, assignment
for the benefit of creditors, marshaling of assets and liabilities or any
bankruptcy, insolvency or similar proceedings of the Company, all amounts due or
to become due upon all Senior Indebtedness shall first be paid in full, in cash
or cash equivalents, or payment thereof provided for in accordance with its
terms, before any payment is made on account of the Principal of or interest on
the indebtedness evidenced by the Securities, and upon any such liquidation,
dissolution, winding up, receivership, reorganization, assignment, marshaling or
proceeding, any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the
Securities or the Trustee under this Indenture would be entitled, except for the
provisions hereof, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Securities or by the Trustee under this
Indenture if received by them or it, directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders) or their respective representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness may have been issued, as
their respective interests may appear, to the extent necessary to pay all Senior
Indebtedness in full (including, without limitation, except to the extent, if
any, prohibited by mandatory provisions of law, post-petition interest, in any
such proceedings), 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 the indebtedness evidenced by the Securities or to the
Trustee under this Indenture.
56
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, prohibited by the foregoing, shall be received by the
Trustee under this Indenture or the holders of the Securities before all Senior
Indebtedness is paid in full or provision is made for such payment in accordance
with its terms, such payment or distribution shall be held intrust for the
benefit of and shall be paid over or delivered to the holders of such Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing any of such
Senior Indebtedness may have been issued, as their respective interests may
appear, for application to the payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness shall have been paid in full in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article, the words, "cash, property or securities"
shall not be deemed to include 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 arrangement, reorganization or readjustment, the payment of which
is subordinated (at least to the extent provided in this Article with respect to
the Securities) to the payment of all Senior Indebtedness which may at the time
be outstanding; provided, that (i) the Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such arrangement, reorganization or
readjustment, and (ii) the rights of the holders of the Senior Indebtedness are
not, without the consent of such holders, altered by such arrangement,
reorganization or readjustment. The consolidation of the Company with, or the
merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided in Article 5 shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section if
such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article 5. Nothing
in this Section shall apply to claims of, or payments to, the Trustee under or
pursuant to Article 7, except as provided therein. This Section shall be subject
to the further provisions of Section 11.05.
SECTION 11.03. Subrogation of Securities. Subject to the payment in full of all
Senior Indebtedness, the holders of the Securities shall be subrogated to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Indebtedness until the principal of and interest on the Securities shall
be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the holders of the Securities or the Trustee on their behalf
would be entitled except for the provisions of this Article, and no payment over
pursuant to the provisions of this Article to the holders of Senior Indebtedness
by holders of the Securities or the Trustee on their behalf shall, as between
the Company, its creditors other than holders of Senior Indebtedness and the
holders of the Securities, be deemed to be a payment by the Company to or on
account of the Senior Indebtedness; and no payments or distributions of cash,
property or securities to or for the benefit of the Securityholders pursuant to
the subrogation provision of this Article, which would otherwise have been paid
to the holders of Senior Indebtedness shall be deemed to be a payment by the
Company to or for the account of the Securities. It is understood that the
provisions of
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this Article are and are intended solely for the purpose of defining the
elative rights of the holders of the Securities, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the holders of the Securities the principal of 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 of the Securities and creditors of the Company other than the holders of
the Senior Indebtedness, nor shall anything herein or therein prevent the holder
of any Security or the Trustee on his behalf from exercising all remedies
otherwise permitted by applicable law upon 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 received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Sections 7.01 and
7.02, and the holders of the Securities shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which such liquidation,
insolvency, bankruptcy, dissolution, winding up, receivership, reorganization,
assignment or marshaling proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the holders
of the Securities, for the purpose of ascertaining the persons entitled to
participate in such 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 11.04. Authorization by Securityholders. Each holder of a Security by
his acceptance thereof authorizes 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 11.05. Notice to Trustee. The Company shall give prompt written notice
to the Trustee and to any paying agent of any fact known to the Company which
would prohibit the making of any payment of moneys to or by the Trustee or any
paying agent in respect of the Securities pursuant to the provisions of this
Article. Regardless of anything to the contrary contained in this Article or
elsewhere in this Indenture, the Trustee shall not be charged with knowledge of
the existence of any Senior Indebtedness or of any default or event of default
with respect to any Senior Indebtedness or of any other facts which would
prohibit the making of any payment of moneys to or by the Trustee, unless and
until the Trustee shall have received notice in writing at its principal
Corporate Trust Office to that effect signed by an officer of the Company, or by
a holder or agent of a holder of Senior Indebtedness who shall have been
certified by the Company or otherwise established to the reasonable satisfaction
of the Trustee to be such holder or agent, or by the trustee under any indenture
pursuant to which Senior Indebtedness shall be outstanding, and, prior to the
receipt of any such written notice, the Trustee
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shall, subject to Sections 7.01 and 7.02, be entitled to assume that no such
facts exist; provided that if on a date at least three Business Days prior to
the date upon which by the terms hereof any such moneys shall become payable for
any purpose (including, without limitation, the payment of the principal of,
interest, accrued original issue discount, redemption price, or any other amount
due and payable with respect to any Security) the Trustee shall not have
received with respect to such moneys the notice provided for in this Section,
then, regardless of anything herein to the contrary, the Trustee shall have full
power and authority to receive such moneys and to apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date.
Regardless of anything to the contrary herein, nothing shall prevent
(a) any payment by the Company or the Trustee to the Securityholders of amounts
in connection with a redemption of Securities if (i) notice of such redemption
has been given pursuant to Article 8.01 prior to the receipt by the Trustee of
written notice as aforesaid, and (ii) such notice of redemption is given not
earlier than 60 days before the redemption date, or (b) any payment by the
Trustee to the Securityholders of amounts deposited with it pursuant to Section
8.01.
The Trustee shall be entitled to conclusively rely on the delivery to
it of a written notice by a person representing himself to be a holder of Senior
Indebtedness (or a trustee or agent on behalf of such holder) to establish that
such notice has been given by a holder of Senior Indebtedness or a trustee on
behalf of any such holder. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such person, the extent to which such person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such person under this Article, and if such evidence
is not furnished the Trustee may defer any payment to such person pending
judicial determination as to the right of such person to receive such payment.
SECTION 11.06. Trustee's Relation to Senior Indebtedness. The Trustee and any
agent of the Company or the Trustee shall be entitled to all the rights set
forth in this Article with respect to any Senior Indebtedness which may at any
time be held by it in its individual or any other capacity to the same extent as
any other holder of Senior Indebtedness and nothing in this Indenture shall
deprive the Trustee or any such agent, of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 7.08.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
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 Senior Indebtedness and, subject to the
provisions of Sections 7.01 and 7.02, the Trustee shall not be liable to any
holder of Senior Indebtedness if it shall pay over or deliver to holders of
Securities, the Company or any other person moneys or assets to which any holder
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
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SECTION 11.07. No Impairment of Subordination. No right of any present or future
holder of any Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any actor failure to act, in good faith, by
any such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or otherwise be charged with.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
CHOICE ONE COMMUNICATIONS INC.
as the Company
By:
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Name:
Title:
THE BANK OF NEW YORK
By:
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Name:
Title:
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