EXHIBIT (d)(3)
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TALK AMERICA HOLDINGS, INC.
TO
U.S. Bank Trust National Association
as Trustee
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INDENTURE
Dated as of February , 2002
Providing for the Issuance of Subordinated Debt Securities in Series
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TALK AMERICA HOLDINGS, INC.
Certain Sections of this Indenture relating to Sections 310
through 318, inclusive, of the Trust Indenture Act of 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(S) 310(a)(1)...................................................................................................609
(a)(2)...................................................................................................609
(a)(3)........................................................................................Not Applicable
(a)(4)........................................................................................Not Applicable
(b).................................................................................................608, 610
(S) 311(a)......................................................................................................613
(b)......................................................................................................613
(S) 312(a)......................................................................................................701
.............................................................................................. ....702(a)
(b)...................................................................................................702(b)
(c)...................................................................................................702(c)
(S) 313(a)...................................................................................................703(a)
(b)...................................................................................................703(a)
(c)...................................................................................................703(a)
(d)...................................................................................................703(b)
(S) 314(a)......................................................................................................704
(a)(4)..............................................................................................101, 704
(b)...........................................................................................Not Applicable
(c)(1)...................................................................................................102
(c)(2)...................................................................................................102
(c)(3)........................................................................................Not Applicable
(d)...........................................................................................Not Applicable
(e)......................................................................................................102
(S) 315(a)......................................................................................................601
(b)......................................................................................................602
(c)......................................................................................................601
(d)......................................................................................................601
(e)......................................................................................................514
(S) 316(a)......................................................................................................101
(a)(1)(A)...........................................................................................502, 512
(a)(1)(B)................................................................................................513
(a)(2)........................................................................................Not Applicable
(b)......................................................................................................508
(c)...................................................................................................104(c)
(S) 317(a)(1)...................................................................................................503
(a)(2)...................................................................................................504
(b).....................................................................................................1505
(S) 318(a)......................................................................................................107
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE ONE Definitions and Other Provisions of General Application...............................................1
Section 101. Definitions............................................................................1
Section 102. Compliance Certificates and Opinions...................................................8
Section 103. Form of Documents Delivered to Trustee.................................................9
Section 104. Acts of Holders; Record Dates..........................................................9
Section 105. Notices, Etc., to Trustee and Company..................................................10
Section 106. Notice to Holders; Waiver..............................................................11
Section 107. Conflict with Trust Indenture Act......................................................11
Section 108. Effect of Headings and Table of Contents...............................................11
Section 109. Successors and Assigns.................................................................11
Section 110. Separability Clause....................................................................12
Section 111. Benefits of Indenture..................................................................12
Section 112. Governing Law..........................................................................12
Section 113. Legal Holidays.........................................................................12
ARTICLE TWO Security Forms........................................................................................12
Section 201. Forms Generally........................................................................12
Section 202. Additional Provisions Required in Book-Entry Security..................................13
Section 203. Form of Trustee's Certificate of Authentication........................................13
ARTICLE THREE The Securities......................................................................................14
Section 301. Amount Unlimited; Issuable in Series...................................................14
Section 302. Denominations..........................................................................16
Section 303. Execution, Authentication, Delivery and Dating.........................................17
Section 304. Temporary Securities...................................................................19
Section 305. Registration, Registration of Transfer and Exchange....................................19
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.......................................21
Section 307. Payment of Interest; Interest Rights Preserved.........................................21
Section 308. Persons Deemed Owners..................................................................23
Section 309. Cancellation...........................................................................23
Section 310. Computation of Interest................................................................23
Section 311. CUSIP Numbers..........................................................................23
ARTICLE FOUR Satisfaction and Discharge...........................................................................24
Section 401. Satisfaction and Discharge of Indenture................................................24
Section 402. Application of Trust Money.............................................................25
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ARTICLE FIVE Remedies.............................................................................................25
Section 501. Events of Default......................................................................25
Section 502. Acceleration of Maturity; Rescission and Annulment.....................................27
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee........................28
Section 504. Trustee May File Proofs of Claim.......................................................28
Section 505. Trustee May Enforce Claims Without Possession of Securities............................29
Section 506. Application of Money Collected.........................................................29
Section 507. Limitation on Suits....................................................................29
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest..............30
Section 509. Restoration of Rights and Remedies.....................................................30
Section 510. Rights and Remedies Cumulative.........................................................30
Section 511. Delay or Omission Not Waiver...........................................................30
Section 512. Control by Holders.....................................................................31
Section 513. Waiver of Past Defaults................................................................31
Section 514. Undertaking for Costs..................................................................31
ARTICLE SIX The Trustee...........................................................................................32
Section 601. Certain Duties and Responsibilities....................................................32
Section 602. Notice of Defaults.....................................................................32
Section 603. Certain Rights of Trustee..............................................................32
Section 604. Not Responsible for Recitals or Issuance of Securities.................................33
Section 605. May Hold Securities and Serve as Trustee Under Other Indentures........................33
Section 606. Money Held in Trust....................................................................34
Section 607. Compensation and Reimbursement.........................................................34
Section 608. Disqualification; Conflicting Interests................................................35
Section 609. Corporate Trustee Required; Eligibility................................................35
Section 610. Resignation and Removal; Appointment of Successor......................................35
Section 611. Acceptance of Appointment by Successor.................................................37
Section 612. Merger, Conversion, Consolidation or Succession to Business............................38
Section 613. Preferential Collection of Claims Against Company......................................39
Section 614. Investment of Certain Payments Held by the Trustee.....................................39
Section 615. Appointment of Authenticating Agent....................................................39
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Company...................................................41
Section 701. Company to Furnish Trustee Names and Addresses of Holders..............................41
Section 702. Preservation of Information; Communications to Holders.................................41
Section 703. Reports by Trustee.....................................................................42
Section 704. Reports by Company.....................................................................42
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ARTICLE EIGHT Successors..........................................................................................42
Section 801. Merger, Consolidation or Sale of Assets................................................42
Section 802. Successor Substituted..................................................................43
ARTICLE NINE Supplemental Indentures..............................................................................43
Section 901. Supplemental Indentures Without Consent of Holders.....................................43
Section 902. Supplemental Indentures with Consent of Holders........................................45
Section 903. Execution of Supplemental Indentures...................................................46
Section 904. Effect of Supplemental Indentures......................................................46
Section 905. Conformity with Trust Indenture Act....................................................46
Section 906. Reference in Securities to Supplemental Indentures.....................................46
ARTICLE TEN Covenants.............................................................................................46
Section 1001. Payment of Securities..................................................................46
Section 1002. Commission Reports.....................................................................47
Section 1003. Compliance Certificate.................................................................47
Section 1004. Stay, Extension and Usury Law..........................................................48
Section 1005. Corporate Existence....................................................................48
Section 1006. Taxes..................................................................................48
Section 1007. Investment Company Act.................................................................48
ARTICLE ELEVEN Redemption of Securities...........................................................................48
Section 1101. Applicability of Article...............................................................48
Section 1102. Election to Redeem: Notice to Trustee..................................................49
Section 1103. Selection by Trustee of Securities to Be Redeemed......................................49
Section 1104. Notice of Redemption...................................................................49
Section 1105. Deposit of Redemption Price............................................................50
Section 1106. Securities Payable on Redemption Date..................................................50
Section 1107. Securities Redeemed in Part............................................................51
ARTICLE TWELVE Sinking Funds......................................................................................51
Section 1201. Applicability of Article...............................................................51
Section 1202. Satisfaction of Sinking Fund Payments with Securities..................................51
Section 1203. Redemption of Securities for Sinking Fund..............................................52
ARTICLE THIRTEEN Subordination of Securities......................................................................52
Section 1301. Agreement to Subordinate...............................................................52
Section 1302. No Payment on Securities if Senior Debt in Default.....................................52
Section 1303. Distribution on Acceleration of Securities; Dissolution and Reorganization;
Subrogation of Securities..............................................................53
Section 1304. Reliance by Senior Debt on Subordination Provisions....................................56
Section 1305. No Waiver of Subordination Provisions..................................................57
Section 1306. Trustee's Relation to Senior Debt......................................................57
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Section 1307. Other Provisions Subject Hereto........................................................58
Section 1308. Limitation on Issuance of Other Subordinated Debt......................................58
ARTICLE FOURTEEN Conversion of Securities.........................................................................58
Section 1401. Applicability of Article...............................................................58
Section 1402. Conversion Privilege and Conversion Price..............................................58
Section 1403. Conversion Procedure...................................................................59
Section 1404. Fractional Shares......................................................................60
Section 1405. Taxes on Conversion....................................................................60
Section 1406. Company to Provide Stock...............................................................60
Section 1407. Adjustment of Conversion Price.........................................................60
Section 1408. No Adjustment..........................................................................64
Section 1409. Other Adjustments......................................................................65
Section 1410. Adjustments for Tax Purposes...........................................................65
Section 1411. Adjustments by the Company.............................................................65
Section 1412. Notice of Adjustment...................................................................65
Section 1413. Notice of Certain Transactions.........................................................65
Section 1414. Effect of Reclassifications, Consolidations, Mergers or Sales on Conversion
Privilege..............................................................................66
Section 1415. Trustee's Disclaimer...................................................................67
ARTICLE FIFTEEN Defeasance and Covenant Defeasance................................................................67
Section 1501. Applicability of Article; Company's Option to Effect Defeasance or Covenant
Defeasance.............................................................................67
Section 1502. Defeasance and Discharge...............................................................68
Section 1503. Covenant Defeasance....................................................................68
Section 1504. Conditions to Defeasance or Covenant Defeasance........................................69
Section 1505. Deposited Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions...............................................................70
Section 1506. Reinstatement..........................................................................71
Section 1507. Qualifying Trustee.....................................................................71
ARTICLE SIXTEEN Immunity of Incorporators, Stockholders, Officers, Directors and Employees........................71
Section 1601. Exemption from Individual Liability....................................................71
NOTE: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
v
INDENTURE, dated as of February , 2002, between Talk America
Holdings, Inc., a Delaware corporation (the "Company"), and U.S. Bank Trust
National Association, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its senior
subordinated unsecured debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more series as provided
in this Indenture.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.
------------
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation in the United States of
America; and
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
1
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 615 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed
in Section 202 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or such nominee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Capital Stock" means any and all shares, interests,
participations, rights or other equivalents (however designated) of equity
interests in any entity, including, without limitation, corporate stock and
partnership interests.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Stock" means the common stock of the Company as the
same exists at the date of the execution of this Indenture or as such stock may
be constituted from time to time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, its Chief Financial Officer, a Vice
Chairman of the Board, a Vice Chairman or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
2
"Conversion Agent" means any Person authorized by the Company
to act as Conversion Agent.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered, which office at the date of original execution of this
Indenture is located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, except
that, with respect to presentation of the Securities for payment or registration
of transfers or exchanges and the location of the register, such term means the
office or agency of the Trustee at which at any particular time its corporate
agency business shall be conducted.
"Daily Market Price" means the price of a share of Common
Stock on the relevant date, determined (a) on the basis of the last reported
sale price regular way of the Common Stock as reported on the Nasdaq Stock
Market's National Market (the "NNM"), or if the Common Stock is not then listed
on the NNM, as reported on such national securities exchange upon which the
Common Stock is listed, or (b) if there is no such reported sale on the day in
question, on the basis of the average of the closing bid and asked quotations
regular way as so reported, or (c) if the Common Stock is not listed on the NNM
or on any national securities exchange, on the basis of the average of the high
bid and low asked quotations regular way on the day in question in the
over-the-counter market as reported by the National Association of Securities
Dealers Automated Quotation System, or if not so quoted, as reported by National
Quotation Bureau, Incorporated, or a similar organization.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
Book-Entry Securities, the Person designated as Depositary for such series by
the Company pursuant to Section 301, which Person shall be a clearing agency
registered under the Securities Exchange Act of 1934; and if at any time there
is more than one such Person, "Depositary" as used with respect to the
Securities of any series shall mean the Depositary with respect to the
Securities of such series.
"Designated Senior Debt" means (i) any Senior Debt which, as
of the date of this Indenture, has an aggregate principal amount outstanding of
at least $15 million, and (ii) any Senior Debt which, at the date of
determination, has an aggregate principal amount outstanding of, or commitments
to lend up to, a least $15 million and is specifically designated by the Company
in the instrument evidencing or governing such Senior Debt as "Designated Senior
Debt" for purposes of this Indenture (provided, that such instrument may place
limitations and conditions on the right of such Senior Debt to exercise the
rights of Designated Senior Debt).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
3
"Indebtedness" means, with respect to any person, all
obligations, whether or not contingent, of such person (i)(a) for borrowed money
(including, but not limited to, any indebtedness secured by a security interest,
mortgage or other lien on the assets of such person which is (1) given to secure
all or part of the purchase price of property subject thereto, whether given to
the vendor of such property or to another, or (2) existing on property at the
time of acquisition thereof), (b) evidenced by a note, debenture, bond or
written instrument, (c) under a lease required to be capitalized on the balance
sheet of the lessee under GAAP or under any lease or related document (including
a purchase agreement) which provides that such person is contractually obligated
to purchase or to cause a third party to purchase such leased property, (d) in
respect of letters of credit, bank guarantees or bankers' acceptances (including
reimbursement obligations with respect to any of the foregoing), (e) with
respect to Indebtedness secured by a mortgage, pledge, lien, encumbrance, charge
or adverse claim affecting title or resulting in an encumbrance to which the
property or assets of such person are subject, whether or not the obligation
secured thereby shall have been assumed or Guaranteed by or shall otherwise be
such person's legal liability, (f) in respect of the balance of the deferred and
unpaid purchase price of any property or assets, and (g) under interest rate or
currency swap agreements, cap, floor and collar agreements, spot and forward
contracts and similar agreements and arrangements; (ii) with respect to any
obligation of others of the type described in the preceding clause (i) or under
clause (iii) below assumed by or guaranteed in any manner by such person or in
effect guaranteed by such person through an agreement to purchase (including,
without limitation, "take or pay" and similar arrangements), contingent or
otherwise (and the obligations of such person under any such assumptions,
guarantees or other such arrangements); and (iii) any and all deferrals,
renewals, extensions, refinancings and refundings of, or amendments,
modifications or supplements to, any of the foregoing.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the forms and terms of
particular series of Securities established as contemplated by Section 301.
"Indexed Security" means any Security which provides that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Issuance Date" means the date on which the Securities are
first authenticated and issued.
4
"Material Subsidiary" means any Subsidiary of the Company
which, at the date of determination, is a "significant subsidiary" as defined in
Rule 1-02(w) of Regulation S-X under the Securities Act and the Exchange Act (as
such Regulation is in effect on the date hereof).
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Financial Officer, a Vice Chairman of the Board, a Vice Chairman or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary, of the Company
(each, an "Officer"), and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided, that if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to Section 1104 of this
Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections
1502 and 1503, with respect to which the Company has effected defeasance or
covenant defeasance as provided in Article Fifteen; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
5
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, or whether sufficient funds are available for redemption or
for any other purpose, and for the purpose of making the calculations required
by Section 313 of the Trust Indenture Act, (i) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 502, (ii) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 301 on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the U.S. dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed to be Outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) except for the
purpose of making the calculations required by Section 313 of the Trust
Indenture Act, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Sections 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
6
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee,
means any officer assigned by the Trustee to administer corporate trust matters
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Debt" means the principal of, interest on and other
amounts due on Indebtedness of the Company, whether outstanding on the date of
the Indenture or thereafter created, incurred, assumed or Guaranteed by the
Company; unless, in the instrument creating or evidencing or pursuant to which
Indebtedness is outstanding, it is expressly provided that such Indebtedness is
not senior in right of payment to the Securities. Senior Debt includes, with
respect to the obligations described above, interest accruing, pursuant to the
terms of such Senior Debt, on or after the filing of any petition in bankruptcy
or for reorganization relating to the Company, whether or not post-filing
interest is allowed in such proceeding, at the rate specified in the instrument
governing the relevant obligation. Notwithstanding anything to the contrary in
the foregoing, Senior Debt shall not include: (a) Indebtedness of or amounts
owed by the Company for compensation to employees, or for goods, services or
materials purchased in the ordinary course of business; (b) Indebtedness of the
Company to a Subsidiary of the Company; (c) any liability for Federal, state,
local or other taxes owed or owing by the Company; or (d) Indebtedness of or
amounts owed by the Company under the Company's 4 1/2% Convertible Subordinated
Notes due 2002 and the Company's 5% Convertible Subordinated Notes due 2004.
"Senior Subordinated Debt" means the Securities and any other
Indebtedness of the Company that specifically provides that it is to rank pari
passu with other Senior Subordinated Debt of the Company and is not subordinated
to any Indebtedness of the Company that is not Senior Debt.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
7
"Subsidiary" means any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary voting
power for the election of directors of such corporation (irrespective of whether
or not at the time stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of any contingency)
is at the time directly or indirectly owned by the Company, or by one or more
other Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday, other than any day on which securities are not traded on the
applicable securities exchange or in the applicable securities market.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in
Section 1504.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
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(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
representations by counsel or an opinion of counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate,
representations or opinion with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate or
representations of counsel or opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by
this Indenture to be given, made or taken by Holders may
be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except
as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject
to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this
Section.
9
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him
the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or
writing, or the authority of the Person executing the
same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The Company may fix any day as the record date for the
purpose of determining the Holders of Securities of any
series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or
other action, or to vote on any action, authorized or
permitted to be given or taken by Holders of Securities
of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such
series made by any Person in respect of any such action,
or, in the case of any such vote, prior to such vote, the
record date for any such action or vote shall be the 30th
day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may
be. With regard to any record date for action to be taken
by the Holders of one or more series of Securities, only
the Holders of Securities of such series on such date (or
their duly designated proxies) shall be entitled to give
or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any
Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action
is made upon such Security.
Section 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration, or
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(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company, Attention: Treasurer.
Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
11
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 112. Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date,
Stated Maturity or Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture or
of the Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, the Redemption Date, or at the Stated Maturity or
Maturity; provided, that no interest shall accrue for the intervening period.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the
form set forth in Exhibit A hereto, which is hereby incorporated in and
expressly made a part of this Indenture, or in such other form as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture.
The Securities may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company) or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced
by their execution of the Securities. The Company shall furnish any such legend
not contained in Exhibit A to the Trustee in writing. The terms and provisions
of the Securities set forth in Exhibit A are part of the terms of this Indenture
12
and to the extent applicable, the Company and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and
to be bound thereby.. If the form of Securities of any series is established by,
or by action taken pursuant to, a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities.
Section 202. Additional Provisions Required in Book-Entry Security.
-----------------------------------------------------
Any Book-Entry Security issued hereunder shall, in addition to
the provisions contained in Exhibit A and in addition to any legend required by
the Depositary, bear a legend in substantially the following form:
"Unless this certificate is presented by an authorized
representative of the Depository Trust Company, a New York Corporation ("DTC"),
New York, New York, to the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co., or to such other entity as is
requested by an authorized representative of DTC) any transfer, pledge or other
use hereof for value or otherwise by or to any person is wrongful inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
Transfers of this global security shall be limited to
transfers in whole, but not in part, to nominees of DTC or to a successor
thereof or such successor's nominee and transfers of portions of this global
security shall be limited to transfers made in accordance with the restrictions
set forth in the indenture referred to on the reverse hereof."
Section 203. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in
substantially the following form:
13
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
U.S. Bank Trust National
Association,
As Trustee
By
-------------------------------
Authorized Signatory
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution and,
subject to Section 303, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities that, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest;
(4) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method of
determination thereof;
14
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the method
by which such date or dates shall be determined, the Interest Payment Dates on
which any such interest shall be payable and the Regular Record Date for any
interest payable on any Interest Payment Date;
(6) if other than the Corporate Trust Office of the Trustee,
the place or places where the principal of and any premium and interest on
Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which, the currency or currencies (including currency units) in which and the
other terms and conditions upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods (or
the methods of determination of such a period or periods) within which, the
price or prices at which and the other terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall be
issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any Securities of
the series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the currency of
the United States of America for purposes of the definition of "Outstanding" in
Section 101;
(11) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with reference to
an index, formula or other method, the index, formula or other method by which
such amounts shall be determined;
(12) if the amount Outstanding of an Indexed Security for
purposes of the definition of "Outstanding" is to be other than the principal
face amount at original issuance, the method of determination of such amount;
(13) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency, currencies
or currency units in which payment of the principal of and any premium and
interest on Securities of such series as to which such election is made shall be
payable, and the periods within which and the other terms and conditions upon
which such election is to be made;
(14) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion shall be determined;
15
(15) if either or both of Section 1502 or 1503 does not apply
to the Securities of any series;
(16) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Book-Entry Securities and, in such
case, the Depositary with respect to such Book-Entry Security or Securities and
the circumstances under which any Book-Entry Security may be registered for
transfer or exchange, or authenticated and delivered, in the name of a Person
other than such Depositary or its nominee, if other than as set forth in Section
305;
(17) the rights, if any, to defer payments of interest on any
Securities of the series by extending the interest payment period, and the
duration of such extensions;
(18) any additional, modified or different covenants or Events
of Default applicable to one or more particular series of Securities;
(19) the application, if any, of Article Fourteen to the
Securities of any Series; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
303) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the
Holders, for issuances of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the series.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as contemplated
by Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
16
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by
two Officers, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver or
make available for delivery such Securities; provided, however, that in the case
of Securities of a series that are not to be originally issued at one time, the
Trustee shall authenticate and deliver or make available for delivery such
Securities from time to time in accordance with such other procedures
(including, without limitation, the receipt by the Trustee of electronic
instructions from the Company or its duly authorized agents, promptly confirmed
in writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series. If the form or forms or terms of
the Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(a) if the form or forms of such Securities have been
established by or pursuant to Board Resolution as
permitted by Section 201, that such form or forms have
been established in conformity with the provisions of
this Indenture;
(b) if the terms of such Securities have been, or in the case
of Securities of a series that are not to be originally
issued at one time, will be established by or pursuant to
Board Resolution as permitted by Section 301, that such
terms have been, or in the case of Securities of a series
that are not to be originally issued at one time, will be
established in conformity with the provisions of this
Indenture, subject, in the case of Securities of a series
that are not to be originally issued at one time, to any
conditions specified in such Opinion of Counsel; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and
17
similar laws of general applicability relating to or
affecting creditors' rights and to general equity
principles; provided, that such Opinion of Counsel need
express no opinion as to whether a court in the United
States would render a money judgment in currency other
than that of the United States.
If such form or forms or terms have been so established, the
Trustee shall not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which the Trustee determines would expose it to personal liability.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in whole or in part in the form of
one or more Book-Entry Securities, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver or make available for delivery
one or more Securities in such form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Book-Entry
Security or Securities, (ii) shall be registered in the name of the Depositary
for such Book-Entry Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear the legend set forth in Section
204.
Unless otherwise established pursuant to Section 301, each
Depositary designated pursuant to Section 301 for a Book-Entry Security must, at
the time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable statute or regulation. The Trustee shall have no responsibility
to determine if the Depositary is so registered. Each Depositary shall enter
into an agreement with the Trustee governing the respective duties and rights of
such Depositary and the Trustee with regard to Book-Entry Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature of an authorized officer
thereof, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
18
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver or make available for delivery, temporary Securities
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver or make available for delivery in
exchange therefor one or more definitive Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Notwithstanding anything herein to the contrary, there shall
be only one Security Register with respect to each series of Securities.
Upon surrender for registration of transfer of any Security of
any series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver or make available for delivery, in the name of the designated transferee
or transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
19
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver or make available for delivery, the
Securities that the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding the foregoing, any Book-Entry Security shall
be exchangeable pursuant to this Section 305 for Securities registered in the
names of Persons other than the Depositary for such Security or its nominee only
if (i) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Book-Entry Security or if at any time such
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended and the Company does not appoint a successor
Depositary within 90 days after receipt by it of such notice or after it becomes
aware of such cessation, (ii) the Company executes and delivers to the Trustee a
Company Order that such Book-Entry Security shall be so exchangeable or (iii)
there shall have occurred and be continuing an Event of Default with respect to
the Securities. Any Book-Entry Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in such names
as such Depositary shall direct.
Notwithstanding any other provision in this Indenture, unless
and until it is exchanged in whole or in part for Securities that are not in the
form of a Book-Entry Security, a Book-Entry Security may not be transferred or
exchanged except as a whole by the Depositary with respect to such Book-Entry
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary.
20
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in a Book-Entry Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver or make
available for delivery in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency maintained for such
purpose pursuant to Section 1002; provided, however, that at the option of the
Company, interest on Securities of any series that bear interest may be paid (i)
21
by check mailed to the address of the Person entitled thereto as it shall appear
on the Security Register or (ii) by wire transfer to an account maintained by
the Person entitled thereto as specified in the Security Register; provided,
that such Person shall have given the Trustee written wire instructions at least
five Business Days prior to the applicable Interest Payment Date.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of such series
at his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by the Trustee.
In the case of any Security which is converted after any
Regular Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
22
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and any
premium and (subject to Section 307) any interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Securities so delivered and any Securities surrendered
directly to the Trustee for any such purpose shall be promptly canceled by the
Trustee and such cancellation shall be noted conspicuously on each such
Security. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of as directed by a Company Order or after 90 days, if not in
receipt of such Company Order, shall be disposed of in accordance with the
Trustee's customary procedures.
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
23
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such CUSIP numbers. The Company will promptly
notify the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of
further effect with respect to Securities of any series (except as to any
surviving rights of registration of transfer, exchange or replacement of such
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such Securities, including, but not
limited to, Article Thirteen hereof, when
(1) either
(A) all such Securities theretofore authenticated and
delivered (other than (i) such Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306 and (ii)
such Securities for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company, and
the Company, in the case of (B)(i), (ii) or (iii) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for the purpose an
amount in the currency or currencies or currency unit or units in which such
Securities are payable sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation,
for principal and any premium and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
24
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607 and
to any Authenticating Agent under Section 615 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402, Article Six and the
last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (unless it is
inapplicable to a particular series or is specifically deleted or modified in
the Board Resolution (or action taken pursuant thereto), Officers' Certificate
or supplemental indenture under which such series of Securities is issued or has
been modified in an indenture supplemental hereto):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series and continuance of such
default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to Securities of that
series (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
25
(5) the Company or any Material Subsidiary pursuant to or
within the meaning of any Bankruptcy Law: (i) commences a voluntary case, (ii)
consents to the entry of an order for relief against it in an involuntary case
in which it is the debtor, (iii) consents to the appointment of a Custodian of
it or for all or substantially all of its property, (iv) makes a general
assignment for the benefit of its creditors, or (v) makes the admission in
writing that it generally is unable to pay its debts as the same become due; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (i) is for relief against the Company or
any Material Subsidiary of the Company in an involuntary case, (ii) appoints a
Custodian of the Company or any Material Subsidiary of the Company or for all or
substantially all of its property, and the order or decree remains unstayed and
in effect for 60 days or (iii) orders the liquidation of the Company or any
Material Subsidiary of the Company, and the order or decree remains unstayed and
in effect for 60 days; or
(7) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any Material Subsidiary of the
Company (or the payment of which is guaranteed by the Company or any Material
Subsidiary of the Company), whether such Indebtedness or guarantee now exists or
is created after the Issuance Date, which default (I) is caused by a failure to
pay when due principal of or interest on such Indebtedness within the grace
period provided for in such Indebtedness (which failure continues beyond any
applicable grace period)(a "Payment Default") or (ii) results in the
acceleration of such Indebtedness prior to its express maturity (without such
acceleration being rescinded or annulled) and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any such
Indebtedness under which there is a Payment Default or the maturity of which has
been so accelerated, aggregates $10 million or more; or
(8) a final, non-appealable judgment or final non-appealable
judgments (other than any judgment as to which a reputable insurance company has
accepted full liability) for the payment of money are entered by a court or
courts of competent jurisdiction against the Company or any Material Subsidiary
of the Company and remain undischarged for a period (during which execution
shall not be effectively stayed) of 60 days, provided that the aggregate of all
such judgments exceeds $5 million; or
(9) any other Event of Default provided with respect to
Securities of that series.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
26
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default
described in clause 5 or 6 of Section 501) with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount of such Securities as
may be specified in the terms thereof) of all of the Securities of that series
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or, in the case of Original Issue Discount Securities or Indexed
Securities, such specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed therefor
in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that series
that have become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
If an Event of Default described in clause 5 or 6 of Section
501 occurs, the Outstanding Securities shall ipso facto become immediately due
and payable without need of any declaration or other act on the part of the
Trustee or any Holder.
27
Section 503. Collection of Indebtedness and Suits for Enforcement
----------------------------------------------------
by Trustee.
----------
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments directly to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and may be a member of a
creditors' or other similar committee.
28
Section 505. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities.
----------
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or any premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the holders of Senior Debt to the extent required
by Article Thirteen;
THIRD: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal and any premium and interest, respectively; and
FOURTH: The balance, if any, to the Company.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
29
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee before or during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
--------------------
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 307) any interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306 and as otherwise provided in Section 507, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Securities 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
30
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed would involve the Trustee in personal liability.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. 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,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs, including counsel fees and expenses, against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided, that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
31
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company, the Trustee or the Holders of 10% in aggregate
principal amount of the Outstanding Securities of any series.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, 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.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of
any series, the Trustee shall, within 90 days, give the Holders of Securities of
such series notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document
(whether in its original or facsimile form) believed by
it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of
Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers'
Certificate;
32
(d) the Trustee may consult with counsel of its selection 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;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at
the request or direction of any of the Holders pursuant
to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be
incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion,
may make such further 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; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due
care by it hereunder.
Section 604. 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 neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities and Serve as Trustee Under Other
----------------------------------------------------
Indentures.
----------
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar, any Conversion Agent or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar, Conversion Agent or such
other agent.
33
Subject to the provisions of Section 608, the Trustee may
become and act as trustee under other indentures under which other securities,
or certificates of interest or participation in other securities, of the Company
are outstanding in the same manner as if it were not Trustee.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
Section 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as shall be agreed in writing between the Company and the Trustee
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
(3) to indemnify each of the Trustee, or any predecessor
Trustee, for, and to hold it harmless against, any and all loss, liability,
damage, claim or expense incurred without negligence or willful misconduct on
its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities upon all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
Without limiting any rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) or Section
501(7), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the satisfaction
and discharge of this Indenture and the resignation or removal of the Trustee.
34
Section 608. Disqualification; Conflicting Interests.
---------------------------------------
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;
provided that there shall be excluded from the operation of this Section 608:(a)
the Indenture dated September 9, 1997 between the Company and U.S. Bank Trust
National Association (formerly known as First Trust of New York, N.A.), as
trustee, pursuant to which the Company's 4 1/2% Convertible Subordinated Notes
due 2002 were issued, (b) the Indenture dated December 10, 1997 between the
Company and U.S. Bank Trust National Association (formerly known as First Trust
of New York, N.A.), as trustee, pursuant to which the Company's 5% Convertible
Subordinated Notes Due 2004 were issued and (c) any other indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding if (i) this
Indenture and such other indenture or indentures are wholly unsecured, and such
other indenture or indentures are hereafter qualified under the Trust Act of
1939, unless the Commission shall have found and declared by order pursuant to
subsection (b) of Section 305 or subsection (c) of Section 307 of the Trust
Indenture Act of 1939 that differences exists between the provisions of such
other indenture or indentures which are so likely to involve a material conflict
of interest as to make it necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as such under this Indenture
or such other indenture or indentures, or (ii) the Company shall have sustained
the burden of proving, on application to the Commission and after opportunity
for hearing thereon, that trusteeship under this Indenture and such other
indenture or indentures is not so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under this Indenture or
such other indenture or indentures.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder that shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of any federal or state supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with
the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance
by a successor Trustee required by Section 611 shall not
have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning
Trustee may petition, at the expense of the Company, any
court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
35
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a
majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and
to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have
been delivered to the Trustee within 30 days after the
giving of such notice of removal, the Trustee being
removed may petition, at the expense of the Company, any
court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a
Board Resolution may remove the Trustee and appoint a successor Trustee with
respect to all Securities, or (ii) subject to Section 514, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood
that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such
series and that at any time there shall be only one
Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements
of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
36
Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by
the Company or the Holders and accepted appointment in
the manner required by Section 611, any Holder who has
been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all
others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the
Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the
manner provided in Section 106. Each notice shall include
the name of the successor Trustee with respect to the
Securities of such series and the address of its
Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such
successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more
(but not all) series, the Company, the retiring Trustee
and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in,
each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all
37
Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3)
shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates; provided, however, that to the extent that such
property and money is not held by the Trustee in trust
for the benefit of the Holders of particular Securities,
such retiring Trustee shall transfer and deliver to such
successor Trustee such property and money upon payment of
its charges hereunder.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in
paragraph (a) and (b) of this Section, as the case may
be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
--------
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation or banking
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or banking association succeeding
to all or substantially all the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such corporation or banking
association shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
38
Section 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 614. Investment of Certain Payments Held by the Trustee.
--------------------------------------------------
Any amounts held by the Trustee hereunder, other than pursuant
to Article Thirteen hereof, shall be invested by the Trustee from time to time
at the direction of the Company in such investments as may be specified by the
Company and reasonably agreed to by the Trustee from time to time; provided that
in investing trust funds pursuant to the terms of this Section and liquidating
any investments held in trust hereunder, the Trustee may, to the extent
permitted by law, purchase securities (including for the purposes of this
paragraph securities as to which the Trustee or a Trustee Affiliate (as defined
below) is the issuer or guarantor) from, and sell securities to, itself or any
Trustee Affiliate and purchase securities underwritten by, or in which a market
is made by, the Trustee or a Trustee Affiliate. For the purposes hereof, a
"Trustee Affiliate" shall mean an entity that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Trustee. Any income or gain realized as a result of any such
investment shall be promptly distributed (in no event later than the next
Business Day) to the Company after any intended amounts have been paid to the
Holders entitled thereto, except after the occurrence and during the continuance
of an Event of Default. The Trustee shall have no liability to the Company for
any loss resulting from any investment made in accordance with this Section, and
shall bear no expense in connection with any investment pursuant to this
Section. Any such investment may be sold (without regard to maturity date) by
the Trustee whenever necessary to make any distribution required by this
Indenture. Nothing herein shall require the Trustee to invest funds held by it
pursuant to the last paragraph of Section 1003.
Section 615. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
39
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
40
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:
U.S. Bank Trust National Association
As Trustee
By
---------------------------------
As Authenticating Agent
By
---------------------------------
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders.
-------
The Company will furnish or cause to be furnished to the
Trustee (a) semi-annually, not later than May 15 and November 15 in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of the preceding November 15 or May 15, as the case
may be, and (b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list in
similar form and content as of a date not more than 15 days prior to the time
such list is furnished; excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of
Holders contained in the most recent list furnished to
the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy
any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished.
41
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture
or under the Securities, and the corresponding rights and
privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of
either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of
Holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(a) 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 following the date of the first
issuance of Securities hereunder deliver to Holders a
brief report, dated as of such May 15, which complies
with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with
each stock exchange upon which any Securities are listed,
with the Commission and with the Company. The Company
promptly will notify the Trustee when any Securities are
listed on any stock exchange or delisted therefrom.
Section 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided, that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE EIGHT
Successors
Section 801. Merger, Consolidation or Sale of Assets.
---------------------------------------
The Company may not consolidate or merge with or into any
person (whether or not the Company is the surviving corporation),or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets unless:
42
(a) the Company is the surviving corporation or the Person
formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other
disposition shall have been made is a corporation
organized or existing under the laws of the United
States, any state thereof or the District of Columbia;
(b) the corporation formed by or surviving any such
consolidation or merger (if other than the Company) or
the corporation to which such sale, assignment, transfer,
lease, conveyance or other disposition will have been
made assumes all the Obligations of the Company, pursuant
to a supplemental indenture in a form reasonably
satisfactory to the Trustee, under the Securities and the
Indenture;
(c) any such sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the
Company's properties or assets shall be as an entirety or
virtually as an entirety to one corporation;
(d) immediately after such transaction no Default or Event of
Default exists; and
(e) the Company or such corporation shall have delivered to
the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such transaction and the
supplemental indenture comply with the Indenture and that
all conditions precedent in the Indenture relating to
such transaction have been satisfied.
Section 802. Successor Substituted.
---------------------
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 801 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or the corporation to which such sale, assignment, transfer, lease,
conveyance 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 has been named as the Company
herein; provided, however, that the predecessor Company in the case of a sale,
assignment, transfer, lease, conveyance or other disposition shall not be
released from the obligation to pay the principal of and interest on the
Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
43
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form or in the form of Book-Entry
Securities; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any Security
of any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611(b); or
(9) if allowed, without penalty under applicable laws and
regulations, to permit payment in the United States (including any of the States
thereof and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction of principal, premium, if any, or
interest, if any, on Securities in bearer form or coupons, if any; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein or to make any other provisions with respect to matters or questions
arising under this Indenture, provided that such action pursuant to this clause
(10), other than with respect to a defective provision, shall not adversely
affect the interests of the Holders of Securities of any series in any material
respect; or
44
(11) to qualify this Indenture under the Trust Indenture Act
or to comply with the requirements of the Commission in order to maintain the
qualification of the Indenture under the Trust Indenture Act; or
(12) to comply with Section 1414 hereof.
Section 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series adversely affected
by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or adversely affect any right of the Holder of any Security to require
the Company to repurchase such Security, or adversely affect the right to
convert any Security as contemplated by Article Fourteen or modify the
provisions of Article Thirteen or the definition of "Senior Debt" in a manner
adverse to the Holder of any Security in any material respect, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section 513 except to
increase any percentage set forth in such Sections or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section or the deletion of this proviso, in
accordance with the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
45
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Securities.
---------------------
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities. Principal
and interest shall be considered paid on the date due if the Paying Agent (other
than the Company or an Affiliate of the Company) holds on that date money
46
designated for and sufficient to pay all principal and interest then due and
such Paying Agent is not prohibited from paying such money to the Holders on
that date pursuant to the terms of this Indenture. To the extent lawful, the
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest (without regard to
any applicable grace period) at the rate borne by the Securities, compounded
semiannually.
Section 1002. Commission Reports.
------------------
Whether or not required by the rules and regulations of the
Commission, so long as any Securities are outstanding, the Company will file
with the Commission and furnish to the Trustee and to the holders of Securities
all quarterly and annual financial information required to be contained in a
filing with the Commission on Forms 10-Q and 10-K, including a "Management's
Discussion and Analysis of Financial Conditions and Results of Operations" and,
with respect to annual information only, a report thereon by the Company's
certified independent accountants.
Section 1003. Compliance Certificate.
---------------------- --
The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, an Officers' Certificate
stating that a review of the activities of the Company and its subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under, and complied with the
covenants and conditions contained in, this Indenture, and further stating, as
to each such Officer signing such certificate, that to the best of such
Officer's knowledge the Company has kept, observed, performed and fulfilled each
and every covenant, and complied with the covenants and conditions contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions hereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which such Officer may have knowledge) and that to the best of such Officer's
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal or of interest, if any, on the Securities
are prohibited.
One of the Officers signing such Officers' Certificate shall
be either the Company's principal executive officer, principal financial officer
or principal accounting officer.
The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon becoming aware of:
(a) any Default, Event of Default or default in the
performance of any covenant, agreement or condition
contained in this Indenture; or
(b) any event of default under any other mortgage, indenture
or instrument as that term is used in Section 501(7), an
Officers' Certificate specifying such Default, Event of
Default or default.
47
Section 1004. Stay, Extension and Usury Law.
----------------------------- -
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
has been enacted.
Section 1005. Corporate Existence.
-------------------
Except as provided in Article Eight hereof, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and the corporate, partnership or other
existence of each Subsidiary of the Company in accordance with the respective
organizational documents of each Subsidiary and the rights (charter and
statutory), licenses and franchises of the Company and its Subsidiaries;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any Subsidiary, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries taken as a whole and that the loss thereof is not adverse in
any material respect to the Holders.
Section 1006. Taxes.
------
The Company shall, and shall cause each of its Subsidiaries
to, pay prior to delinquency all taxes, assessments and governmental levies,
except as contested in good faith and by appropriate proceedings.
Section 1007. Investment Company Act.
------------------------
As long as any Notes are outstanding, the Company will conduct
its business and operations so as not to become an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and will take all steps required in order for it to continue not
to be an "investment company" and not to be required to be registered under the
Investment Company Act, including, if necessary, redeployment of the assets of
the Company.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable in whole or in
part before their Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
48
Section 1102. Election to Redeem: Notice to Trustee.
-------------------------------------
In case of any redemption at the election of the Company of
the Securities of any series, the Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series and of a specified tenor
are to be redeemed or unless such redemption affects only a single Security),
the particular Securities to be redeemed shall be selected not less than 30 days
and not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of a portion of the principal amount of any
Security of such series, provided that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination (which shall not
be less than the minimum authorized denomination) for such Security. If less
than all of the Securities of such series and of a specified tenor are to be
redeemed (unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not less than 30 days and not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
49
All notices of redemption shall identify the Securities to be
redeemed (including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) in the case of partial redemption of any Securities, the
principal amounts of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, or portion thereof, to be
redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) that there exists a conversion privilege, if such is the
case, and the current Conversion Price and the date on which the right to
convert such securities or portions thereof will expire, if applicable.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and shall
be irrevocable.
Section 1105. Deposit of Redemption Price.
---------------------------
On or prior to the Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 301, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
50
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver or make available for delivery to the
Holder of such Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a
Book-Entry Security is so surrendered, such new Security so issued shall be a
new Book-Entry Security.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
51
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1202 and stating the basis for such credit
and that such Securities have not been previously so credited and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
Subordination of Securities
Section 1301. Agreement to Subordinate.
-------------------------
The Company, for itself and its successors, and each Holder,
by his acceptance of Securities, agree that the payment of the principal of or
interest on or any other amounts due on the Securities is subordinated in right
of payment, to the extent and in the manner stated in this Article Thirteen, to
the prior payment in full of all existing and future Senior Debt. The Securities
shall rank pari passu among each other and shall rank senior to the Company's 4
1/2% Convertible Subordinated Notes due 2002 and the Company's 5% Convertible
Subordinated Notes due 2004.
Section 1302. No Payment on Securities if Senior Debt in Default.
--------------------------------------------------
Anything in this Indenture to the contrary notwithstanding, no
payment on account of principal of or redemption of, interest on or other
amounts due on the Securities (including the making of a deposit pursuant to
Section 1105), and no redemption, purchase, or other acquisition of the
Securities, shall be made by or on behalf of the Company (i) unless full payment
of amounts then due for principal and interest and of all other amounts then due
on all Senior Debt has been made or duly provided for pursuant to the terms of
the instrument governing such Senior Debt, (ii) if, at the time of such payment,
redemption, purchase or other acquisition, or immediately after giving effect
thereto, there shall exist under any Senior Debt, or any agreement pursuant to
which any Senior Debt is issued, any default, which default shall not have been
cured or waived and which default shall have resulted in the full amount of such
Senior Debt being declared due and payable or (iii) if, at the time of such
52
payment, redemption, purchase or other acquisition, the Trustee shall have
received written notice from the Representative of the holders of Designated
Senior Debt (a "Payment Blockage Notice") that there exists under such
Designated Senior Debt, or any agreement pursuant to which such Designated
Senior Debt is issued, any default, which default shall not have been cured or
waived, permitting the holders thereof to declare any amounts of such Designated
Senior Debt due and payable, but only for the period (the "Payment Blockage
Period") commencing on the date of receipt of the Payment Blockage Notice and
ending (unless earlier terminated by notice given to the Trustee by the
Representative of the holders of such Designated Senior Debt) on the earlier of
(a) the date on which such event of default shall have been cured or waived or
(b) 180 days from the receipt of the Payment Blockage Notice. Notwithstanding
the provisions described in the immediately preceding sentence (other than in
clauses (i) and (ii)), unless the holders of such Designated Senior Debt or the
Representative of such holders shall have accelerated the maturity of such
Designated Senior Debt, the Company may resume payments on the Securities after
the end of such Payment Blockage Period. Not more than one Payment Blockage
Notice may be given in any consecutive 365-day period, irrespective of the
number of defaults with respect to Senior Debt during such period.
In the event that, notwithstanding the provisions of this
Section 1302, payments are made by or on behalf of the Company in contravention
of the provisions of this Section 1302, such payments shall be held by the
Trustee, any Paying Agent or the holders, as applicable, in trust for the
benefit of, and shall be paid over to and delivered to, the Representative of
the holders of Senior Debt or the trustee under the indenture or other agreement
(if any), pursuant to which any instruments evidencing any Senior Debt may have
been issued for application to the payment of all Senior Debt ratably according
to the aggregate amounts remaining unpaid to the extent necessary to pay all
Senior Debt in full in accordance with the terms of such Senior Debt, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Debt.
The Company shall give prompt written notice to the Trustee
and any Paying Agent of any default or event of default under any Senior Debt or
under any agreement pursuant to which any Senior Debt may have been issued.
Section 1303. Distribution on Acceleration of Securities;
-------------------------------------------
Dissolution and Reorganization; Subrogation of Securities.
----------------------------------------------------------
(a) If the Securities are declared due and payable because of
the occurrence of an Event of Default, the Company shall
give prompt written notice to the holders of all Senior
Debt or to the trustee(s) for such Senior Debt of such
acceleration. The Company may not pay the principal of or
interest on or any other amounts due on the Securities
until five Business Days after such holders or trustee(s)
of Senior Debt receive such notice and, thereafter, the
Company may pay the principal of or interest on or any
other amounts due on the Securities only if the
provisions of this Article permit such payment.
(b) Upon (i) any acceleration of the principal amount due on
the Securities because of an Event of Default or (ii) any
direct or indirect distribution of assets of the Company
upon any dissolution, winding up, liquidation or
53
reorganization of the Company (whether in bankruptcy,
insolvency or receivership proceedings or upon an
assignment for the benefit of creditors or any other
dissolution, winding up, liquidation or reorganization of
the Company):
(1) the holders of all Senior Debt shall first be entitled to
receive payment in full of the principal thereof, the interest thereon and any
other amounts due thereon before the holders are entitled to receive payment on
account of the principal of or interest on or any other amounts due on the
Securities;
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted or securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in this Article with respect to the Securities, to the payment in full
without diminution or modification by such plan of all Senior Debt), to which
the holders or the Trustee would be entitled (other than in respect of amounts
payable to the Trustee pursuant to Section 607) except for the provisions of
this Article, shall be paid by the liquidating trustee or agent or other person
making such a payment or distribution, directly to the holders of Senior Debt
(or their representative(s) or trustee(s) acting on their behalf), ratably
according to the aggregate amounts remaining unpaid on account of the principal
of or interest on and other amounts due on the Senior Debt held or represented
by each, to the extent necessary to make payment in full of all Senior Debt
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Debt; and
(3) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than securities of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article with respect to the
Securities, to the payment in full without diminution or modification by such
plan of Senior Debt), shall be received by the Trustee (other than in respect of
amounts payable to the Trustee pursuant to Section 607) or the holders before
all Senior Debt is paid in full, such payment or distribution shall be held in
trust for the benefit of, and be paid over to upon request by a holder of the
Senior Debt, the holders of the Senior Debt remaining unpaid (or their
representatives) or trustee(s) acting on their behalf, ratably as aforesaid, for
application to the payment of such Senior Debt until all such Senior Debt shall
have been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Debt.
Subject to the payment in full of all Senior Debt, the holders
shall be subrogated to the rights of the holders of Senior Debt to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Debt until the principal of and interest on the
Securities shall be paid in full and, for purposes of such subrogation, no such
payments or distributions to the holders of Senior Debt of cash, property or
securities which otherwise would have been payable or distributable to holder
shall, as between the Company, its creditors other than the holders of Senior
Debt, and the holders, be deemed to be a payment by the Company to or on account
of the Senior Debt, it being understood that the provisions of this Article are
and are intended solely for the purpose of defining the relative rights of the
holders, on the one hand, and the holders of Senior Debt, on the other hand.
54
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall (i) impair, as between
the Company and its creditors other than the holders of Senior Debt, the
obligation of the Company, which is absolute and unconditional, to pay to the
holders the principal of and interest on the Securities as and when the same
shall become due and payable in accordance with the terms of the Securities,
(ii) affect the relative rights of the holders and creditors of the Company
other than holders of Senior Debt or, as between the Company and the Trustee,
the obligations of the Company to the Trustee, or (iii) prevent the Trustee or
the holders 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 Debt in respect of cash, property and
securities of the Company received upon the exercise of any such remedy.
Upon distribution of assets of the Company referred to in this
Article, the Trustee, subject to the provisions of Section 601 hereof, and the
holders shall be entitled to rely upon a certificate of the liquidating trustee
or agent or other person making any distribution to the Trustee or to the
holders for the purpose of ascertaining the persons entitled to participate in
such distribution, the holders of the Senior Debt 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.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt. Nothing contained in this Article or elsewhere in this
Indenture, or in any of the Securities, shall prevent the good faith application
by the Trustee of any moneys which were deposited with it hereunder, prior to
its receipt of written notice of facts which would prohibit such application,
for the purpose of the payment of or on account of the principal of or interest
on, the Securities unless, prior to the date on which such application is made
by the Trustee, the Trustee shall be charged with actual notice under Section
1303(d) hereof of the facts which would prohibit the making of such application.
(c) The provisions of this Article shall not be applicable to
any cash, properties or securities received by the
Trustee or by any holder when received as a holder of
Senior Debt and nothing in Section 613 hereof or
elsewhere in this Indenture shall deprive the Trustee or
such holder of any of its rights as such holder.
(d) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would
prohibit the making of any payment of money to or by the
Trustee in respect of the Securities pursuant to the
provisions of this Article. The Trustee, subject to the
provisions of Section 601 hereof, shall be entitled to
assume that no such fact exists unless the Company or any
holder of Senior Debt or any trustee therefor has given
notice thereof to the Trustee. Notwithstanding the
provisions of this Article or any other provisions of
this Indenture, the Trustee shall not be charged with
knowledge of the existence of any fact which would
prohibit the making of any payment of moneys to or by the
Trustee in respect of the Securities pursuant to the
provisions in this Article, unless, and until three
55
Business Days after, the Trustee shall have received
written notice thereof from the Company or any holder or
holders of Senior Debt or from any trustee therefor; and,
prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 601 hereof,
shall be entitled in all respects conclusively to assume
that no such facts exist; provided that if on a date not
less than three Business Days immediately preceding the
date upon which, by the terms hereof, any such moneys may
become payable for any purpose (including, without
limitation, the principal of or interest on any
Security), the Trustee shall not have received with
respect to such moneys the notice provided for in this
Section 1303(d), then anything herein contained to the
contrary notwithstanding, 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.
The Trustee shall be entitled to rely conclusively on the
delivery to it of a written notice by a person representing himself to be a
holder of Senior Debt (or a trustee on behalf of such holder) to establish that
such notice has been given by a holder of Senior Debt (or a trustee on behalf of
any such holder or holders). 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 Debt 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 Debt 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; nor shall
the Trustee be charged with knowledge or the curing or waiving of any default of
the character specified in Section 1302 hereof or that any event or any
condition preventing any payment in respect of the Securities shall have ceased
to exist, unless and until the Trustee shall have received written notice to
such effect.
(e) The provisions of this Section 1303 applicable to the
Trustee shall (unless the context requires otherwise)
also apply to any Paying Agent for the Company.
Section 1304. Reliance by Senior Debt on Subordination Provisions.
---------------------------------------------------
Each holder of any Security by his acceptance thereof
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration for each holder of any Senior
Debt, whether such Senior Debt was created or acquired before or after the
issuance of the Securities, to acquire and continue to hold, or to continue to
hold, such Senior Debt, and such holder of Senior Debt shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Debt. Notice of any
default in the payment of any Senior Debt, except as expressly stated in this
Article, and notice of acceptance of the provisions hereof are hereby expressly
waived. Except as otherwise expressly provided herein, no waiver, forbearance or
release by any holder of Senior Debt under such Senior Debt or under this
Article shall constitute a release of any of the obligations or liabilities of
the Trustee or holders of the Securities provided in this Article.
56
Section 1305. No Waiver of Subordination Provisions.
------------------------------------- -
Except as otherwise expressly provided herein, no right of any
present or future holder of any Senior Debt 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 act or 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 any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of, or notice to, the Trustee or the holders of the
Securities, without incurring responsibility to the holders of the Securities
and without impairing or releasing the subordination provided in this Article
Thirteen or the obligations hereunder of the holders of the Securities to the
holders of Senior Debt, do any one or more of the following: (i) change the
manner, place or terms of payment of, or renew or alter, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(ii) sell, exchange, release or otherwise dispose of any property pledged,
mortgaged or otherwise securing Senior Debt; (iii) release any person liable in
any manner for the collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company or any other person.
Section 1306. Trustee's Relation to Senior Debt.
---------------------------------
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article in respect of any Senior Debt at any
time held by it, to the same extent as any holder of Senior Debt, and nothing in
Section 613 hereof or elsewhere in this Indenture shall deprive the Trustee of
any of its rights as such holder. Anything in this Indenture to the contrary
notwithstanding, amounts payable to the Trustee from time to time pursuant to
Section 607 shall be treated for purposes of this Article as if such amounts
constituted Senior Debt hereunder.
With respect to the holders of Senior Debt, 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 Debt shall be read into this
Indenture against the Trustee. The Trustee shall not owe any fiduciary duty to
the holders of Senior Debt but shall have only such obligations to such holders
as are expressly set forth in this Article.
Each holder of a Security by his acceptance thereof authorizes
and directs the Trustee on 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,
including, in the event of any dissolution, winding up or liquidation or
reorganization under any applicable bankruptcy law of the Company (whether in
bankruptcy, insolvency or receivership proceedings or otherwise), the timely
57
filing of a claim for the unpaid balance of such holder's Securities in the form
required in such proceedings and the causing of such claim to be approved. If
the Trustee does not file a claim or proof of debt in the form required in such
proceedings prior to 30 days before the expiration of the time to file such
claims or proofs, then any holder or holders of Senior Debt or their
representative or representatives shall have the right to demand, xxx for,
collect, receive and receipt for the payments and distributions in respect of
the Securities which are required to be paid or delivered to the holders of
Senior Debt as provided in this Article and to file and prove all claims
therefor and to take all such other action in the name of the holders or
otherwise, as such holders of Senior Debt or representative thereof may
determine to be necessary or appropriate for the enforcement of the provisions
of this Article. Anything in this Indenture to the contrary notwithstanding,
amounts payable to the Trustee from time to time pursuant to Section 607 shall
be treated for purposes of this Article as if such amounts constituted Senior
Debt hereunder.
Section 1307. Other Provisions Subject Hereto.
-------------------------------
Except as expressly stated in this Article, notwithstanding
anything contained in this Indenture to the contrary, all the provisions of this
Indenture and the Securities are subject to the provisions of this Article.
However, nothing in this Article shall apply to or adversely affect the claims
of, or payment to, the Trustee pursuant to Section 607. Notwithstanding the
foregoing, the failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article Thirteen shall not
be construed as preventing the occurrence of an Event of Default under Section
501.
Section 1308. Limitation on Issuance of Other Subordinated Debt.
-------------------------------------------------
The Company shall not issue, assume, guarantee, incur or
otherwise become liable, directly or indirectly, for any Indebtedness
Subordinate or junior in ranking in any respect to any Senior Debt unless such
Indebtedness is Senior Subordinated Debt or is expressly subordinated in right
of payment to Senior Subordinated Debt.
ARTICLE FOURTEEN
Conversion of Securities
Section 1401. Applicability of Article.
------------------------
If pursuant to Section 301 provision is made for the
conversion of Securities pursuant to this Article Fourteen, then the provisions
of this Article Fourteen, with such modifications thereto as may be specified
pursuant to Section 301 with respect to any Securities, shall be applicable to
the Securities of such series.
Section 1402. Conversion Privilege and Conversion Price.
-----------------------------------------
A holder of a Security may convert the principal amount
thereof (or any portion thereof that is an integral multiple of $1,000 or such
other minimum amount as may be specified for such Security), into fully paid and
nonassessable shares of Common Stock of the Company at any time following the
Issuance Date and prior to the close of business on the Business Day immediately
preceding the maturity date of the Security at the Conversion
58
Price then in effect, except that, with respect to any Security called for
redemption, such conversion right shall terminate at the close of business on
the Business Day immediately preceding the redemption date (unless the Company
shall default in making the redemption payment when it becomes due, in which
case the conversion right shall terminate on the date such default is cured),
The number of shares of Common Stock issuable upon conversion of a Security is
determined by dividing the principal amount of the Security converted by the
conversion price in effect on the Conversion Date (the "Conversion Price").
The initial Conversion Price shall be set forth in the
applicable Securities and is subject to adjustment as provided in this Article
Fourteen.
Provisions of this Indenture that apply to conversion of all
of a Security also apply to conversion of a portion of it, A holder of
Securities is not entitled to any rights of a holder of Common Stock until such
holder of Securities has converted such Securities into Common Stock, and only
to the extent that such Securities are deemed to have been converted into Common
Stock under this Article Fourteen.
Section 1403. Conversion Procedure.
--------------------
To convert a Security, a holder must satisfy the requirements
set forth in the Securities, The date on which the holder satisfies all of those
requirements is the conversion date (the "Conversion Date"). As soon as
practicable after the Conversion Date, the Company shall deliver to the holder
through the Conversion Agent a certificate for the number of whole shares of
Common Stock issuable upon the conversion and a check for any fractional share
determined pursuant to Section 1404, The person in whose name the certificate is
registered shall become the stockholder of record on the Conversion Date and, as
of such date, such person's rights as a Holder with respect to the converted
Security shall cease; provided, however, that no surrender of a Security on any
date when the stock transfer books of the Company shall be closed shall be
effective to constitute the person entitled to receive the shares of Common
Stock upon such conversion as the stockholder of record of such shares of Common
Stock on such date, but such surrender shall be effective to constitute the
person entitled to receive such shares of Common Stock as the stockholder of
record thereof for all purposes at the close of business on the next succeeding
day on which such stock transfer books are open; provided further, however, that
such conversion shall be at the Conversion Price in effect on the date that such
Security shall have been surrendered for conversion, as if the stock transfer
books of the Company had not been closed.
No payment or adjustment will be made for accrued and unpaid
interest on a converted Security or for dividends or distributions on shares of
Common Stock issued upon conversion of a Security, but if any holder surrenders
a Security for conversion after the close of business on the record date for the
payment of an installment of interest and prior to the opening of business on
the next interest payment date, then, notwithstanding such conversion, the
interest payable on such interest payment date shall be paid to the holder of
such Security on such record date. In such event, unless such Security has been
called for redemption on or prior to such interest payment date, such Security,
when surrendered for conversion, must be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest payable on such
interest payment date on the portion so converted.
59
If a holder converts more than one Security at the same time,
the number of whole shares of Common Stock issuable upon the conversion shall be
based on the total principal amount of Securities converted.
Upon surrender of a Security that is converted in part, the
Trustee shall authenticate for the holder a new Security equal in principal
amount to the unconverted portion of the Security surrendered,
Section 1404. Fractional Shares.
-----------------
The Company will not issue fractional shares of Common Stock
upon conversion of a Security. In lieu thereof, the Company will pay an amount
in cash based upon the Daily Market Price of the Common Stock on the trading day
prior to the date of conversion.
Section 1405. Taxes on Conversion.
-------------------
The issuance of certificates for shares of Common Stock upon
the conversion of any Security shall be made without charge to the converting
Holder for such certificates or for any tax in respect of the issuance of such
certificates, and such certificates shall be issued in the respective names of,
or in such names as may be directed by, the holder or holders of the converted
Security; provided, however, that in the event that certificates for shares of
Common Stock are to be issued in a name other than the name of the holder of the
Security converted, such Security, when surrendered for conversion, shall be
accompanied by an instrument of assignment or transfer, in form satisfactory to
the Company, duly executed by the registered holder thereof or his duly
authorized attorney; and provided further, however, that the Company shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name other
than that of the holder of the converted Security, and the Company shall not be
required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid or is not applicable.
Section 1406. Company to Provide Stock.
------------------------
The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common Stock,
solely for the purpose of issuance upon conversion of Securities as herein
provided, a sufficient number of shares of Common Stock to permit the conversion
of all outstanding Securities for shares of Common Stock.
All shares of Common Stock which may be issued upon conversion
of the Securities shall be duly authorized, validly issued, fully paid and
nonassessable when so issued.
Section 1407. Adjustment of Conversion Price.
------------------------------
The Conversion Price shall be subject to adjustment from time
to time as follows:
60
(a) In case the Company shall (1) pay a dividend in shares of
Common Stock to holders of Common Stock, (2) make a
distribution in shares of Common Stock to holders of
Common Stock, (3) subdivide its outstanding shares of
Common Stock into a greater number of shares of Common
Stock or (4) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock,
the Conversion Price in effect immediately prior to such
action shall be adjusted so that the holder of any
Security thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock
which he would have owned immediately following such
action had such Securities been converted immediately
prior thereto. Any adjustment made pursuant to this
subsection (a) shall become effective immediately after
the record date in the case of a dividend or distribution
and shall become effective immediately after the
effective date in the case of a subdivision or
combination.
(b) In case the Company shall issue rights or warrants to
substantially all holders of Common Stock entitling them
(for a period commencing no earlier than the record date
for the determination of holders of Common Stock entitled
to receive such rights or warrants and expiring not more
than 45 days after such record date) to subscribe for or
purchase shares of Common Stock (or securities
convertible into Common Stock) at a price per share less
than the Current Market Price (as determined pursuant to
subsection (f) below) of the Common Stock on such record
date, the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to such
record date by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding on such
record date, plus the number of shares of Common Stock
which the aggregate offering price of the offered shares
of Common Stock (or the aggregate conversion price of the
convertible securities so offered) would purchase at such
Current Market Price, and of which the denominator shall
be the number of shares of Common Stock outstanding on
such record date plus the number of additional shares of
Common Stock offered (or into which the convertible
securities so offered are convertible). Such adjustments
shall become effective immediately after such record
date.
(c) In case the Company shall distribute to all holders of
Common Stock shares of any class of Capital Stock of the
Company other than Common Stock, evidences of
indebtedness or other assets (other than cash dividends
out of current or retained earnings), or shall distribute
to substantially all holders of Common Stock rights or
warrants to subscribe for securities (other than those
Securities referred to in subsection (b) above), then in
each such case the Conversion Price shall be adjusted so
that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately
prior to the date of such distribution by a fraction of
which the numerator shall be the Current Market Price
(determined as provided in subsection (f) below) of the
Common Stock on the record date mentioned below less the
then fair market value (as determined by the Board of
61
Directors, whose determination shall be conclusive
evidence of such fair market value and described in a
Board Resolution) of the portion of the assets so
distributed or of such subscription rights or warrants
applicable to one share of Common Stock, and of which the
denominator shall be such Current Market Price of the
Common Stock. Such adjustment shall become effective
immediately after the record date for the determination
of the holders of Common Stock entitled to receive such
distribution. Notwithstanding the foregoing, in case the
Company shall issue rights or warrants to subscribe for
additional shares of the Company's capital stock (other
than those referred to in subsection (b) above)
("Rights") to substantially all holders of Common Stock,
the Company may, in lieu of making any adjustment
pursuant to this Section 1407, make proper provision so
that each holder of a Security who converts such Security
(or any portion thereof) after the record date for such
distribution and prior to the expiration or redemption of
the Rights shall be entitled to receive upon such
conversion, in addition to the shares of Common Stock
issuable upon such conversion (the "Conversion Shares"),
a number of Rights to be determined as follows: (i) if
such conversion occurs on or prior to the date for the
distribution to the holders of Rights of separate
certificates evidencing such Rights (the "Distribution
Date"), the same number of Rights to which a holder of a
number of shares of Common Stock equal to the number of
Conversion Shares is entitled at the time of such
conversion in accordance with the terms and provisions of
and applicable to the Rights; and (ii) if such conversion
occurs after the Distribution Date, the same number of
Rights to which a holder of the number of shares of
Common Stock into which the principal amount of the
Security so converted was convertible immediately prior
to the Distribution Date would have been entitled on the
Distribution Date in accordance with the terms and
provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at
any time distribute to all holders of its Common Stock
cash (including any distributions of cash out of current
or retained earnings of the Company but excluding any
cash that is distributed as part of a distribution
requiring a Conversion Price adjustment pursuant to
paragraph (c) of this Section) in an aggregate amount
that, together with the sum of (x) the aggregate amount
of any other distributions to all holders of its Common
Stock made in cash plus (y) all Excess Payments, in each
case made within the 12 months preceding the date fixed
for determining the stockholders entitled to such
distribution (the "Distribution Record Date") and in
respect of which no Conversion Price adjustment pursuant
to paragraphs (c) or (e) of this Section or this
paragraph (d) has been made, exceeds 15% of the product
of the Current Market Price per share (determined as
provided in paragraph (f) of this Section) of the Common
Stock on the Distribution Record Date multiplied by the
number of shares of Common Stock outstanding on the
Distribution Record Date (excluding shares held in the
treasury of the Company), the Conversion Price shall be
reduced so that the same shall equal the price determined
62
by multiplying such Conversion Price in effect
immediately prior to the effectiveness of the Conversion
Price reduction contemplated by this paragraph (d) by a
fraction of which the numerator shall be the Current
Market Price per share (determined as provided in
paragraph (f) of this Section) of the Common Stock on the
Distribution Record Date less the amount of such cash and
other consideration (including any Excess Payments) so
distributed applicable to one share of Common Stock
(equal to the aggregate amount of such cash and other
consideration (including any Excess Payments) divided by
the number of shares of Common Stock outstanding on the
Distribution Record Date) and the denominator shall be
such Current Market Price per share (determined as
provided in paragraph (f) of this Section) of the Common
Stock on the Distribution Record Date, such reduction to
become effective immediately prior to the opening of
business on the day following the Distribution Record
Date.
(e) In case a tender offer or other negotiated transaction
made by the Company or any Subsidiary of the Company for
all or any portion of the Common Stock shall be
consummated, if an Excess Payment is made in respect of
such tender offer or other negotiated transaction and the
amount of such Excess Payment, together with the sum of
(x) the aggregate amount of all Excess Payments plus (y)
the aggregate amount of all distributions to all holders
of the Common Stock made in cash (including any
distributions of cash out of current or retained earnings
of the Company), in each case made within the 12 months
preceding the date of payment of such current negotiated
transaction consideration or expiration of such current
tender offer, as the case may be (the "Purchase Date"),
and as to which no adjustment pursuant to paragraph (c)
or paragraph (d) of this Section or this paragraph (e)
has been made, exceeds 15% of the product of the Current
Market Price per share (determined as provided in
paragraph (f) of this Section) of the Common Stock on the
Purchase Date multiplied by the number of shares of
Common Stock outstanding (including any tendered shares
but excluding any shares held in the treasury of the
Company or any Subsidiary of the Company) on the Purchase
Date, the Conversion Price shall be reduced so that the
same shall equal the price determined by multiplying such
Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction
contemplated by this paragraph (e) by a fraction of which
the numerator shall be the Current Market Price per share
(determined as provided in paragraph (f) of this Section)
of the Common Stock on the Purchase Date less the amount
of such Excess Payments and such cash distributions, if
any, applicable to one share of Common Stock (equal to
the aggregate amount of such Excess Payments and such
cash distributions divided by the number of shares of
Common Stock outstanding on the Purchase Date) and the
denominator shall be such Current Market Price per share
(determined as provided in paragraph (f) of this Section)
of the Common Stock on the Purchase Date, such reduction
to become effective immediately prior to the opening of
business on the day following the Purchase Date.
63
(f) The "Current Market Price" per share of Common Stock on
any date shall be deemed to be the average of the Daily
Market Prices for the shorter of (i) 30 consecutive
Business Days ending on the last full Trading Day on the
exchange or market referred to in determining such Daily
Market Prices prior to the time of determination or (ii)
the period commencing on the date next succeeding the
first public announcement of the issuance of such rights
or such warrants or such other distribution or such
negotiated transaction through such last full trading day
on the exchange or market referred to in determining such
Daily Market Prices prior to the time of determination.
(g) "Excess Payment" means the excess of (A) the aggregate of
the cash and fair market value of other consideration
paid by the Company or any of its Subsidiaries with
respect to the shares acquired in a tender offer or other
negotiated transaction over (B) the Daily Market Price on
the Trading Day immediately following the completion of
such tender offer or other negotiated transaction
multiplied by the number of acquired shares.
(h) In any case in which this Section 1407 shall require that
an adjustment be made immediately following a record date
for an event, the Company may elect to defer, until such
event, issuing to the holder of any Security converted
after such record date the shares of Common Stock and
other Capital Stock of the Company issuable upon such
conversion over and above the shares of Common Stock and
other Capital Stock of the Company issuable upon such
conversion only on the basis of the Conversion Price
prior to adjustment; and, in lieu of the shares the
issuance of which is so deferred, the Company shall issue
or cause its transfer agents to issue due bills or other
appropriate evidence of the right to receive such shares.
Section 1408. No Adjustment.
-------------
No adjustment in the Conversion Price shall be required until
cumulative adjustments amount to 1% or more of the Conversion Price as last
adjusted; provided, however, that any adjustments which by reason of this
Section 1408 are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Article
Fourteen shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be. No adjustment need be made for rights to purchase
Common Stock pursuant to a Company plan for reinvestment of dividends or
interest. No adjustment need be made for a change in the par value or no par
value of the Common Stock.
64
Section 1409. Other Adjustments.
-----------------
(a) In the event that, as a result of an adjustment made
pursuant to Section 1407 above, the holder of any
Security thereafter surrendered for conversion shall
become entitled to receive any shares of Capital Stock of
the Company other than shares of its Common Stock,
thereafter the Conversion Price of such other shares so
receivable upon conversion of any Securities shall be
subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in this
Article Fourteen.
(b) In the event that shares of Common Stock are not
delivered after the expiration of any of the rights or
warrants referred to in Section 1407(b) and Section
1407(c) hereof, the Conversion Price shall be readjusted
to the Conversion Price which would otherwise be in
effect had the adjustment made upon the issuance of such
rights or warrants been made on the basis of delivery of
only the number of shares of Common Stock actually
delivered.
Section 1410. Adjustments for Tax Purposes.
----------------------------
The Company may, at its option, make such reductions in the
Conversion Price, in addition to those required by Section 1407 above, as it
determines to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights to purchase stock or securities or distribution
of securities convertible into or exchangeable for stock made by the Company to
its stockholders will not be taxable to the recipients thereof.
Section 1411. Adjustments by the Company.
--------------------------
The Company from time to time may, to the extent permitted by
law, reduce the Conversion Price by any amount for any period of at least 20
days, in which case the Company shall give at least 15 days' notice of such
reduction in accordance with Section 1412, if the Board of Directors has made a
determination that such reduction would be in the best interests of the Company,
which determination shall be conclusive.
Section 1412. Notice of Adjustment.
--------------------
Whenever the Conversion Price is adjusted, the Company shall
promptly mail to Holders at the addresses appearing on the Security Registrar's
books a notice of the adjustment and file with the Trustee an Officers'
Certificate briefly stating the facts requiring the adjustment and the manner of
computing it. The certificate shall be conclusive evidence of the correctness of
such adjustment.
Section 1413. Notice of Certain Transactions.
------------------------------
In the event that:
65
(1) the Company takes any action which would require an
adjustment in the Conversion Price;
(2) the Company takes any action that would require a
supplemental indenture pursuant to Section 1414; or
(3) there is a dissolution or liquidation of the Company; a
holder of a Security may wish to convert such Security into shares of Common
Stock prior to the record date for or the effective date of the transaction so
that he may receive the rights, warrants, securities or assets which a holder of
shares of Common Stock on that date may receive, Therefore, the Company shall
mail to Noteholders at the addresses appearing on the Security Registrar's books
and the Trustee a notice stating the proposed record or effective date, as the
case may be. The Company shall mail the notice at least 15 days before such
date; however, failure to mail such notice or any defect therein shall not
affect the validity of any transaction referred to in clause (1), (2) or (3) of
this Section 1413.
Section 1414. Effect of Reclassifications, Consolidations, Mergers
----------------------------------------------------
or Sales on Conversion Privilege.
--------------------------------
If any of the following shall occur, namely: (i) any
reclassification or change of outstanding shares of Common Stock issuable upon
conversion of Securities (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), (ii) any consolidation or merger to which the Company is a
party other than a merger in which the Company is the continuing corporation and
which does not result in any reclassification of, or change (other than a change
in name, or par value, or from par value to no par value, or from no par value
to par value or as a result of a subdivision or combination) in, outstanding
shares of Common Stock or (iii) any sale or conveyance of all or substantially
all of the property or business of the Company as an entirety, then the Company,
or such successor or purchasing corporation, as the case may be, shall, as a
condition precedent to such reclassification, change, consolidation, merger,
sale or conveyance, execute and deliver to the Trustee a supplemental indenture
in form satisfactory to the Trustee providing that the holder of each Security
then outstanding shall have the right to convert such Security into the kind and
amount of shares of stock and other securities and property (including cash)
receivable upon such reclassification, change, consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock deliverable upon
conversion of such Security immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments of the Conversion Price which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Price
provided for in this Article Fourteen. The foregoing, however, shall not in any
way affect the right a holder of a Security may otherwise have, pursuant to
clause (ii) of the last sentence of subsection (c) of Section 1407, to receive
Rights upon conversion of a Security. If, in the case of any such consolidation,
merger, sale or conveyance, the stock or other securities and property
(including cash) receivable thereupon by a holder of Common Stock includes
shares of stock or other securities and property of a corporation other than the
successor or purchasing corporation, as the case may be, in such consolidation,
merger, sale or conveyance, then such supplemental indenture shall also be
executed by such other corporation and shall contain such additional provisions
to protect the interests of the holders of the Securities as the Board of
Directors of the Company shall reasonably consider necessary by reason of the
foregoing. The provision of this Section 1414 shall similarly apply to
successive consolidations, mergers, sales or conveyances.
66
In the event the Company shall execute a supplemental
indenture pursuant to this Section 1414, the Company shall promptly file with
the Trustee an Officers' Certificate briefly stating the reasons therefor, the
kind or amount of shares of stock or securities or property (including cash)
receivable by holders of the Securities upon the conversion of their Securities
after any such reclassification, change, consolidation, merger, sale or
conveyance and any adjustment to be made with respect thereto.
Section 1415. Trustee's Disclaimer.
--------------------
The Trustee has no duty to determine when an adjustment under
this Article Fourteen should be made, how it should be made or what such
adjustment should be, but may accept as conclusive evidence of the correctness
of any such adjustment, and shall be protected in relying upon the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 1412, The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the Company's failure
to comply with any provisions of this Article Fourteen.
The Trustee shall not be under any responsibility to determine
the correctness of any provisions contained in any supplemental indenture
executed pursuant to Section 14.14, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 14.14.
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance
Section 1501. Applicability of Article; Company's Option to Effect
----------------------------------------------------
Defeasance or Covenant Defeasance.
---------------------------------
Unless, pursuant to Section 301, provision is made that either
or both of (a) defeasance of the Securities of a series under Section 1502 or
(b) covenant defeasance of the Securities of a series under Section 1503 shall
not apply to the Securities of a series, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
Fifteen, with such modifications thereto as may be specified pursuant to Section
301 with respect to any Securities, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any time,
with respect to the Securities of such series, elect to have either Section 1502
(if applicable) or Section 1503 (if applicable) applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article Fifteen.
67
Section 1502. Defeasance and Discharge.
------------------------
Upon the Company's exercise of its option to have this Section
applied to any series of Securities, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding Securities of
such series, and the provisions of Article Thirteen hereof shall cease to be
effective, on and after the date the conditions precedent set forth below are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series which
shall thereafter be deemed to be "Outstanding" only for the purposes of the
Sections of this Indenture referred to in clauses (A) and (B) of this Section,
and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of Outstanding Securities of
such series to receive, solely from the trust fund described in Section 1504 as
more fully set forth in such Section, payments of the principal of (and premium,
if any) and interest on such Securities when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 305, 306,
1002 and 1003 and such obligations as shall be ancillary thereto, (C) the
rights, powers, trusts, duties, immunities and other provisions in respect of
the Trustee hereunder and (D) this Article Fifteen. Subject to compliance with
this Article Fifteen, the Company may exercise its option under this Section
1502 notwithstanding the prior exercise of its option under Section 1503 with
respect to the Securities of such series. Following a defeasance, payment of
such Securities may not be accelerated because of an Event of Default.
Section 1503. Covenant Defeasance.
-------------------
Upon the Company's exercise of its option (if any) to have
this Section applied to any series of Securities, the Company shall be released
from its obligations under Section 801 (and any covenant made applicable to such
Securities pursuant to Section 301), the occurrence of an event specified in
Section 501(4) (with respect to Section 801 or any such covenant) (and any other
Event of Default applicable to such Securities that are determined pursuant to
Section 301 to be subject to this provision) shall not be deemed to be an Event
of Default with respect to the Outstanding Securities of such series and the
provisions of Article Thirteen hereof shall cease to be effective on and after
the date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and such Securities shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with
Section 801 (and any other covenant made applicable to such Security pursuant to
Section 301 and any such Events of Default), but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of such
series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section or
such other covenant whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of any
reference in any such Section or such other covenant to any other provision
herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby. Notwithstanding the defeasance by the
Company of its obligations under Section 801, any successor shall be required to
assume the Company's obligations under Section 607 as a condition to such
succession.
68
Section 1504. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions precedent to application
of either Section 1502 or Section 1503 to the Outstanding Securities of or
within such series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 609 who shall agree to comply with the provisions of this Article
Fifteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (A) money in an amount (in
such currency, currencies or currency units in which such Securities are then
specified as payable at Maturity), or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (C) a combination thereof in an
amount, sufficient, without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Maturity of such principal,
premium, if any, or interest and (ii) any mandatory sinking fund payments
applicable to such Securities on the day on which such payments are due and
payable in accordance with the terms of this Indenture and such Securities.
Before such a deposit the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or dates in accordance
with Article Eleven, which shall be given effect in applying the foregoing. For
this purpose, "U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the account of
the holder of such depositary 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 depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depositary receipt.
(2) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing (A) on the date of such
deposit or (B) insofar as subsections 501(5) and (6) are concerned, at any time
during the period ending on the 91st day after the date of such deposit or, if
longer, ending on the day following the expiration of the longest preference
period applicable to the Company in respect of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of such
period).
69
(3) Such defeasance or covenant defeasance shall not (A) cause
the Trustee for the Securities of such series to have a conflicting interest as
defined in Section 608 or for purposes of the Trust Indenture Act with respect
to any Securities of the Company or (B) result in the trust arising from such
deposit to constitute, unless it is qualified as, a regulated investment company
under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(5) In the case of an election under Section 1502, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (y) since the date of this Indenture there has been a
change in the applicable federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain or loss
for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance had not occurred.
(6) In the case of an election under Section 1503, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such covenant
defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 1502 or the covenant defeasance under Section 1503 (as the case may be)
have been complied with.
Section 1505. Deposited Money and U.S. Government Obligations to be
-----------------------------------------------------
Held in Trust; Other Miscellaneous Provisions.
---------------------------------------------
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (collectively, for
purposes of this Section 1505, the "Trustee") pursuant to Section 1504 in
respect of the Outstanding Securities of such series shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any Paying Agent (but
not including the Company acting as its own Paying Agent) as the Trustee may
70
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law. Money so held in trust shall not be subject to the provisions of Article
Thirteen.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the money or U.S.
Government Obligations deposited pursuant to Section 1504 or the principal and
interest received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1504
which in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
Section 1506. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 1505 by reason of any order or judgment or any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under the Securities of such
series shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Fifteen until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 1505; provided,
however, that if the Company makes any payment of principal of (and premium, if
any) or interest on any such Security following 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 money held by the Trustee or
the Paying Agent.
Section 1507. Qualifying Trustee.
------------------
Any trustee appointed pursuant to Section 1504 for the purpose
of holding trust funds deposited pursuant to that Section shall be appointed
under any agreement in form acceptable to the Trustee and shall provide to the
Trustee a certificate of such trustee, upon which certificate the Trustee shall
be entitled to conclusively rely, that all conditions precedent provided for
herein to the related defeasance or covenant defeasance have been complied with.
In no event shall the Trustee be liable for any acts or omissions of said
trustee.
ARTICLE SIXTEEN
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
Section 1601. Exemption from Individual Liability.
-----------------------------------
No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer, director, or employee, as such, past, present or future,
of the Company or of any successor corporation, either directly or through the
71
Company, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers, directors, or employees, as such, of the Company or of
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer,
director, or employee, as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
*****
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
72
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
TALK AMERICA HOLDINGS, INC.
By:
-----------------------------------
Name: Xxxxxxxx X. Lawn IV
Title: Executive Vice President--
General Counsel and Secretary
U.S. Bank Trust National Association
By:
-----------------------------------
Name:
Title:
73
STATE OF ____________ )
)
COUNTY OF ___________ )
On ____________, 2002, before me, ____________, Notary Public,
personally appeared __________________, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity and that by his/her
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
STATE OF PENNSYLVANIA )
)
COUNTY OF BUCKS )
On the _____ day of ___________, 2002, before me personally
came Xxxxxxxx X. Lawn IV, to me known, who, being by me duly sworn, did depose
and say that he is the Executive Vice President--General Counsel and Secretary
of Talk America Holdings, Inc., one of the companies described in and which
executed the foregoing instrument; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority of the Board of Directors of said corporation.
Notary Public
74
EXHIBIT A
---------
Form of Face of Security.
------------------------
[insert any legend required by the Internal Revenue Code and the
----------------------------------------------------------------
regulations thereunder.]
----------------------
TALK AMERICA HOLDINGS, INC.
---------------------------
No. $
-------- CUSIP No._________
Talk America Holdings, Inc., a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to, or registered assigns, the principal
sum of _______________ Dollars on [if the Security is to bear interest
prior to Maturity, insert, and to pay interest thereon from or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on __________ and in each year, commencing
____________, at the rate of % per annum, until the principal hereof is paid
or made available for payment [if applicable, insert -- and (to the extent that
the payment of such interest shall be legally enforceable) at the rate of %
per annum on any overdue principal and premium and on any overdue installment of
interest]. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ____or ____ (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity,
insert -- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of % per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on demand.
[Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of % per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]]
A-1
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in _________, in
such coin or currency of [the United States of America] as at the time of
payment is legal tender for payment of public and private debts [if applicable,
insert --; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Security Register, provided that such Person shall have given the Trustee
written wire instructions at least five Business Days prior to the applicable
Interest Payment Date.]
[If the Security is payable in a foreign currency, insert --
the appropriate provision.]
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
TALK AMERICA HOLDINGS, INC.
By
--------------------------------
Title:
Attest:
---------------------------
Title:
FORM OF REVERSE OF SECURITY.
---------------------------
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of February _, 2002 (herein called
the "Indenture"), between the Company and [ ], as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior Debt
and the Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This Security is one of the
series designated on the face hereof [,limited in aggregate principal amount to
$].
A-2
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, such 30 or 60 days, as the case may be, to be counted from the date notice
is mailed, [if applicable, insert -- (1) on _____________ in any year commencing
with the year ____________ and ending with the year through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after ___________, 19 ], as a
whole or in part, at the election of the Company, [at Redemption Prices
determined as follows:] [at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before %, and if
redeemed] during the 12-month period beginning ______________ of the years
indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ______ % of the principal amount,]
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates or Special Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable insert -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, such 30 or 60 days, as the case may be, to be counted from the date notice
is mailed, (1) on ______________ in any year commencing with the year and ending
with the year _____________ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after], as a whole or in part, at the election
of the Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning
of the years indicated,
Redemption Price Redemption Price for
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- -----------------------
and thereafter at a Redemption Price equal to __________ % of the principal
amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates or Special Record Dates referred to on the face hereof, all
as provided in the Indenture.]
A-3
[Notwithstanding the foregoing, the Company may not, prior to
redeem any Securities of this series as contemplated by [Clause (2) of]
the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than % per annum.]
[The sinking fund for this series provides for the redemption
on ____________ in each year beginning with the year _______________ and ending
with the year of [not less than $ ________ ("mandatory sinking fund") and not
more than] $ aggregate principal amount of Securities of this series. Securities
of this series acquired or redeemed by the Company otherwise than through
[mandatory] sinking fund payments may be credited against subsequent [mandatory]
sinking fund payments otherwise required to be made [in the inverse order in
which they become due].]
[If the Securities do not have a sinking fund, then insert --
the Securities do not have the benefit of any sinking fund obligations.]
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Debt, and this Security is issued subject to
the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effect the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
[If the Security is subject to redemption, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not subject to redemption, insert -- The
Securities of this series are not redeemable prior to Stated Maturity.]
[If applicable, insert -- The Indenture contains provisions
for defeasance at any time of [the entire indebtedness of this Security]
[and/or] [certain restrictive covenants and Events of Default with respect to
this Security] [, in each case] upon compliance with certain conditions set
forth in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to - insert formula for determining
the amount. Upon payment (i) of the amount of principal so declared due and
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payable and (ii) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
[If the Security is an Indexed Security, insert -- the
appropriate provision.]
[If the Security is convertible, insert -- Subject to and upon
compliance with the provisions of the Indenture, the Holder of this Security is
entitled, at its option, at any time on or after the opening of business on
__________, 199__ and on or before the close of business on __________, or in
case this Security or a portion hereof is called for redemption, then in respect
of this Security or such portion hereof until and including, but (unless the
Company defaults in making the payment due upon redemption) not after, the close
of business on the Redemption Date, to convert this Security (or any portion of
the principal amount hereof which is $ __________or an integral multiple
thereof), at the principal amount hereof, or of such portion, into fully paid
and nonassessable shares (calculated as to each conversion to the nearest 1/100
of a share) of [Common Stock] [Preferred Stock] of the Company at a conversion
price equal to $_________ aggregate principal amount of Securities for each
share of [Common Stock] [Preferred Stock] (or at the current adjusted conversion
price if an adjustment has been made as provided in the Indenture) by surrender
of this Security, duly endorsed or assigned to the Company or in blank, to the
Company at its office or agency in ______________________, accompanied by
written notice to the Company that the Holder hereof elects to convert this
Security, of if less than the entire principal amount hereof is to be converted,
the portion hereof to be converted, and, in case such surrender shall be made
during the period from the close of business on any Regular Record Date next
preceding any Interest Payment Date to the opening of business on such Interest
Payment Date (unless this Security of the portion hereof being converted has
been called for redemption on a Redemption Date within such period), also
accompanied by payment in immediately available funds or other funds acceptable
to the Company of an amount equal to the interest payable on such Interest
Payment Date on the principal amount of this Security then being converted.
Subject to the aforesaid requirement for payment and, in the case of a
conversion after the Regular Record Date next preceding any Interest Payment
Date and on or before such Interest Payment Date, to the right of the Holder of
this Security (or any Predecessor Security) of record at such Regular Record
Date to receive an installment of interest (with certain exceptions provided in
the Indenture), no payment or adjustment is to be made on conversion for
interest accrued hereon or for dividends on the Common Stock issued on
conversion. No fractions of shares or scrip representing fractions of shares
will be issued on conversion, but instead of any fractional interest the Company
shall pay a cash adjustment as provided in the Indenture. The conversion price
is subject to adjustment as provided in the Indenture. In addition, the
Indenture provides that in case of certain consolidations or mergers to which
the Company is a party or the transfer of substantially all of the assets of the
Company, the Indenture shall be amended, without the consent of any Holders of
Securities, so that this Security, if then outstanding, will be convertible
thereafter, during the period this Security shall be convertible as specified
above, only into the kind and amount of securities, cash and other property
receivable upon the consolidation, merger or transfer by a holder of the number
of shares of [Common Stock] [Preferred Stock] into which this Security might
have been converted immediately prior to such consolidation, merger or transfer
(assuming such holder of [Common Stock] [Preferred Stock] failed to exercise any
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rights of election and received per share the kind and amount received per share
by a plurality of non-electing shares), assuming, if such consolidation, merger
or transfer is prior to [insert date upon which the Securities first become
convertible], that this Security was convertible at the time of such
consolidation, merger or transfer at the initial conversion price specified
above as adjusted from [date of issuance], to such time pursuant to the
Indenture.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be adversely affected under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be
adversely affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and any premium and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $ [and any integral multiple
thereof]. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
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No recourse shall be had for the payment of the principal of
(or premium, if any) or the interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer, director or employee, as such, past, present or future, of
the Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes (subject to Section 307 of the Indenture), whether or
not this Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture. The
Indenture and this Security shall be governed by and construed in accordance
with the laws of the State of New York without regard to the conflicts of laws
principles thereof.
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